Maestro Tequilero, S.A. de C.V. v. Gildardo Partida Hermosillo

OCR transcription for search; preserved printed pages are authoritative

This Opinion is Nota
Precedent of the TTAB

Mailed: February 10, 2026

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

Maestro Tequilero, S.A. de C.V.
v.

Gildardo Partida Hermosillo

Cancellation No. 92074808

Marie Anne Mastrovito, Jennifer Kwon, and Jacob Wharton, Womble Bond
Dickinson (US) LLP, for Maestro Tequilero, S.A. de C.V.

Johanna M. Wilbert, Christian G. Stahl, Nathan J. Oesch, and Elizabeth M.
Shirreff, Quarles & Brady LLP, for Gildardo Partida Hermosillo.

Before Larkin, Allard, and O’Connor,
Administrative Trademark Judges.

Opinion by O’Connor, Administrative Trademark Judge:

Maestro Tequilero, S.A. de C.V. (“Petitioner”) seeks cancellation of two
registrations owned by Gildardo Partida Hermosillo (“Respondent”) for the mark

LOTE MAESTRO in standard characters and LOTE MAESTRO and design in the

Cancellation No. 92074808
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following form, , for “alcoholic beverages, except beer,”1 in
International Class 332 on the ground of likelihood of confusion under Trademark Act
1 The identification for the word and design mark also includes “alcoholic beverages except
beers,” which are legally equivalent to “alcoholic beverages, except beer.”
2 The standard character mark is the subject of Registration No. 5846859, issued August 27,
2019 from an application filed August 9, 2018 under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b), based on Respondent’s statement that it had a bona fide intention to use
the mark in commerce with the identified goods. After allowance, Respondent filed a
statement of use averring first use anywhere and in commerce at least as early as February
26, 2019. The registration includes a statement that “[t]he English translation of ‘LOTE
MAESTRO’ in the mark is ‘MASTERFUL PLOT’.”
The word and design mark is the subject of Registration No. 5869770, issued September 24,
2019 from an application filed October 18, 2018 also based on intent to use. After allowance,
Respondent filed a statement of use averring first use anywhere and in commerce at least as
early as July 1, 2019. The description of the mark reads:
The mark consists of a three-dimensional configuration comprising a singular
concave bottle with alternating right side up and upside down triangular
shapes with the front facing upright triangle containing the stylized wording
“LOTE” above the stylized wording “MAESTRO” with a stylized raised design
of a plate having grapes and a skewered piece of crescent shaped food at the
bottom of the front facing triangle. The bottle stopper is an overall diamond
jewel shape. The broken lines depicting the neck of the bottle and the perimeter
of the stopper indicate placement of the mark on the goods and are not part of
the mark.
Color is not claimed as a feature of the mark. The word and design mark registration has the
same translation statement as the standard character registration and a disclaimer of “the
alternating triangular facets and tapered shape of the bottle and of the jewel-shaped faceted
stopper.” Both of Respondent’s registrations have been maintained through the filing and
acceptance of declarations of use under Section 8 of the Trademark Act, 15 U.S.C. § 1058.

Cancellation No. 92074808
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Section 2(d), 15 U.S.C. § 1052(d), based on Petitioner’s previously used and registered
marks containing the word MAESTRO. Petitioner relies on the following marks, each
of which is registered on the Principal Register:3
Reg. No. Mark Goods4
3624848 MAESTRO Tequila
3624849 MAESTRO TEQUILERO (TEQUILERO
disclaimed)
Tequila
4488885 MAESTRO DOBEL Alcoholic beverages,
namely, tequila
4122301
(TEQUILERO disclaimed)
Tequila
3 Amended Petition for Cancellation, 20 TTABVUE 11-12; 125 TTABVUE 9-10; 47 TTABVUE
at 2-109 (Notice of Reliance attaching status and title copies of pleaded registrations).
Citations to the record and briefs reference TTABVUE, the Board’s online docket system. The
number before TTABVUE corresponds to the docket entry number, and any numbers after
TTABVUE refer to the page number(s) where the cited material appears.
The Amended Petition also listed Registration No. 5572507 for RESERVA DEL MAESTRO
DOBEL DIAMOND and design, 20 TTABVUE 12, but that registration was cancelled on
April 18, 2025. See Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, No. 92051006,
2014 TTAB LEXIS 95, at *3 n.4 (taking judicial notice of changes in title and status of pleaded
and proven registrations); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(TBMP) § 704.03(b)(1) (2025). We therefore give this registration no consideration. See Time
Warner Entm’t Co. v. Jones, No. 91112409, 2002 TTAB LEXIS 462, at *4 n.6. Petitioner has
made maintenance filings for all of the remaining registrations listed in its amended petition
for which such filings have come due. The ten active, pleaded registrations listed in the text
are referred to collectively as “Petitioner’s Registrations” with the subject marks referred to
collectively as “Petitioner’s Marks.”
4 Petitioner notes that, “[a]lthough all the MAESTRO marks are used in association with
certified tequila, the descriptions in the registrations differ because ‘Tequila’ became a
registered certification mark in the United States in 2017. Following the registration of the
certification mark, the word ‘tequila’ could no longer be used in the identification of goods for
a U.S. trademark application or registration. As a result, all applications which matured into
registrations after the registration of the certification mark, and registrations that were
renewed after this date, include the wording ‘distilled blue agave liquor’ instead of ‘tequila.’”
125 TTABVUE 9 n.1. The parties largely use “tequila” in their briefs, and we do the same
here.

Cancellation No. 92074808
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3442162 RESERVA DEL MAESTRO Tequila
4660142 Tequila
5465261 MAESTRO DOBEL Tequila
5775732 RESERVA DEL MAESTRO (RESERVA
disclaimed)
Alcoholic beverages,
namely, distilled blue
agave liquor
5730611
(“TEQUILA, SINGLE ESTATE
TEQUILA, 100% DE AGAVE,
REPOSADO EN BARRICAS DE
ROBLE, OR RESERVA” disclaimed);
claim of acquired distinctiveness under
Trademark Act § 2(f) for MAESTRO
TEQUILERO
Distilled blue agave
spirits
6311606 MAESTRO DOBEL HUMITO Distilled blue agave
liquor

Cancellation No. 92074808
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Respondent’s operative pleading asserts a counterclaim seeking to cancel
Petitioner’s Registration No. 3624848 for the mark MAESTRO (the “’848
Registration”) on grounds of abandonment,5 and otherwise denies the salient
allegations of the operative Petition for Cancellation.
Petitioner denies the salient allegations of Respondent’s counterclaim.6
The case is fully briefed.7 Each party must show its entitlement to a statutory
cause of action, Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1364
5 31 TTABVUE 7-11, Respondent’s Answer to First Amended Petition for Cancellation.
Respondent’s earlier pleading included a second counterclaim that MAESTRO has become
generic for tequila, 14 TTABVUE 16-18, prompting Petitioner to amend its petition to assert
an alternative, conditional ground for cancellation that, if MAESTRO were found to be
generic, then Respondent’s registrations for marks incorporating MAESTRO with the
descriptive term “lote” must be cancelled as merely descriptive. 20 TTABVUE 13-14.
Respondent later withdrew its second counterclaim with prejudice. See 32 TTABVUE
(consent motion), 34 TTABVUE (order). Petitioner did not further amend its petition for
cancellation or affirmatively withdraw its alternative, conditional ground for cancellation,
but the parties treated that ground as moot, with neither party addressing it in their trial
briefs. Petitioner’s alternative, conditional ground for cancellation, 20 TTABVUE 13-14, is
therefore moot and is dismissed.
Respondent’s operative answer sets forth five “Affirmative Defenses,” 31 TTABVUE 6-7, of
which the First, Fourth and Fifth defenses are not true affirmative defenses. See, e.g.,
Shenzhen IVPS Tech. Co. v. Fancy Pants Prods., LLC, No. 91263919, 2022 TTAB LEXIS 383,
at *4-5 n.5 (failure to state a claim is not a true affirmative defense; amplifications of denials
of likelihood of confusion are not true affirmative defenses). Nor do we consider Respondent’s
attempt to reserve “the right to add additional affirmative defenses as discovery develops.”
31 TTABVUE 7; see, e.g., Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 TTAB
LEXIS 228, at *3-4 (rejecting attempt to reserve right to add defenses). At trial, Respondent
did not pursue its remaining Second affirmative defense of laches or Third affirmative
defense of waiver, acquiescence and estoppel, thereby forfeiting or impliedly waiving those
defenses. See Heil Co. v. Tripleye GmbH, No. 91277359, 2024 TTAB LEXIS 494, at *8
(citations omitted).
6 33 TTABVUE. Petitioner’s sole affirmative defense that it “has used the MAESTRO mark
in U.S. commerce in connection with the registered goods since the date of registration, and
the mark is currently in use on said goods,” 33 TTABVUE 4, merely amplifies its denials.
7 See 125 TTABVUE (Petitioner’s brief, public) (126 TTABVUE, confidential); 134 TTABVUE
(Respondent’s brief); 139 TTABVUE (Petitioner’s rebuttal brief); 140 (Respondent’s rebuttal

Cancellation No. 92074808
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(Fed. Cir. 2025) (petition for cert. filed, No. 25-435 (Oct. 3, 2025)), and prove the
elements of its substantive claim for cancellation by a preponderance of the evidence.
See, e.g., Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d 994, 998
(Fed. Cir. 2020); Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d
1352, 1358 (Fed. Cir. 2009). Petitioner has met its burden to prove likelihood of
confusion and we grant the operative Amended Petition for Cancellation based on the
first ground therein. Respondent has not met its burden to prove abandonment by
non-use and we deny Respondent’s counterclaim to cancel Petitioner’s ’848
Registration.
I. The Record
The record includes the pleadings and, by operation of Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1), the files of Respondent’s registrations and of
Petitioner’s ’848 Registration. In addition, the parties submitted the materials
discussed below during their respective trial and rebuttal periods. See Trademark
Rules 2.120, 2.122, 2.123, and 2.125, 37 C.F.R. §§ 2.120, 2.123, 2.122 and 2.125.
brief on counterclaim). The parties each submitted testimony and/or exhibits containing
information designated confidential. For each such submission, we indicate where the
confidential and redacted, publicly available versions are docketed. Unless otherwise noted,
all citations herein to the briefs and record are to the publicly available documents.

Cancellation No. 92074808
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Petitioner’s submissions:
• Declaration of Dr. Alex Simonson, President of the marketing research
firm Simonson Associates, Inc., Petitioner’s proffered survey expert, with
his Expert Report and exhibits, 45 TTABVUE.8
• Declaration of Noelle Beristain Kochanczyk (“Ms. Beristain”), Brand
Director, Maestro Dobel Tequila, employed by Proximo Spirits, Inc.,
Petitioner’s U.S. distributor, with exhibits, 44 TTABVUE (confidential), 46
TTABVUE (redacted public version).
• First Notice of Reliance, 47 TTABVUE, with Trademark Status and
Document Retrieval (TSDR) printouts of Petitioner’s pleaded
Registrations.
• Second Notice of Reliance, 48 TTABVUE, Third through Seventh Notices
of Reliance, 86 TTABVUE,9 and Eighth and Ninth Notices of Reliance, 87-
88 TTABVUE, 94 TTABVUE 19 (addendum with English translation of
document in Ninth Notice of Reliance), with printed publications, official
records and Internet materials.
• Testimony Deposition of Kathryn Cox, Senior Investigator at Marksmen
Brand Protection Services, with exhibits, 117, 122 and 132 TTABVUE.
• Testimony Deposition of Respondent Gildardo Partida Hermosillo, 118
TTABVUE (confidential), 119 TTABVUE (public).
• Testimony Deposition of Lucas Perez, U.S. Sales Director for Vitro
Tequilera, S.A. de C.V., a company controlled by Respondent, with exhibits,
120 TTABVUE (public); 121 TTABVUE (confidential).
• Testimony Deposition of Joel K. Beth, Chief Executive Officer and
Managing Partner for Pacific Edge Marketing Group, Inc., Respondent’s
U.S. distributor, with exhibits, 123 TTABVUE (public), 124 TTABVUE
(confidential).
8 The record contains references to a rebuttal expert report by a Dr. Anderson, which
Respondent apparently commissioned but opted not to submit as evidence at trial. See, e.g.,
81 TTABVUE 100, 274-302 (Simonson July 2022 Tr. and Ex. 3); 139 TTABVUE 62 n.7.
9 Exhibits 5, 6 and 7 to Petitioner’s Fifth Notice of Reliance (Internet search summaries) were
stricken, 96 TTABVUE, and we give them no consideration. Petitioner’s Fourth and Sixth
Notices of Reliance, originally submitted at 86 TTABVUE, were revised in accordance with
the Board’s May 29, 2024 Order, 96 TTABVUE, with the revised versions found at 97 and 98
TTABVUE, respectively. We consider only the revised versions.

Cancellation No. 92074808
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Respondent’s submissions:
• Testimony Declaration of Joel K. Beth with exhibits, 63 TTABVUE (public),
64 TTABVUE (confidential).
• Testimony Declaration of Lucas Perez with exhibits, 65 TTABVUE.
• Testimony Declaration of Gildardo Partida Hermosillo and English
translation thereof, 68 TTABVUE.
• Testimony Declaration of Kathryn Cox with exhibits, 99 TTABVUE.
• First through Fourth Notices of Reliance, 59-62 TTABVUE, Fifth and Sixth
Notices of Reliance, 66-67 TTABVUE, and Seventh through Eleventh
Notices of Reliance, 69-73 TTABVUE, with printed publications, official
records and Internet materials.
• Twelfth Notice of Reliance on the July 28, 2022 Discovery Deposition of Dr.
Simonson as Trial Testimony and Exhibit A thereto, submitted by
stipulation of the parties and approved by the Board (see 52, 58, 80
TTABVUE), 81 TTABVUE (public); 82 TTABVUE (confidential).
• Testimony deposition transcript of the February 15, 2023 Deposition of
Noelle Beristain Kochancyzk with exhibits, 101 TTABVUE (public); 102
TTABVUE (confidential).
• Testimony deposition transcript of the February 7, 2023 deposition of Dr.
Simonson with exhibits, 103 TTABVUE.
In its rebuttal period, Respondent also submitted:
• Thirteenth Notice of Reliance, 100 TTABVUE, with printed publications.
II. Evidentiary Issues
Each of the parties has objected to certain of the other party’s submissions by way
of motions to strike that were deferred until trial and objections set forth in
appendices to their briefs. Before turning to the merits of the dispute, we address
certain of these evidentiary issues.

Cancellation No. 92074808
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A. Respondent’s Objections
Respondent objects to the following declaration testimony of Ms. Beristain (and
any associated deposition testimony) on grounds of lack of foundation, competence,
and hearsay:10
55. I am aware that there has been actual confusion
between the LOTE MAESTRO tequila product and
Maestro Tequilero’s MAESTRO branded tequila product.
56. Specifically, the LOTE MAESTRO tequila product has
been confused with the MAESTRO DOBEL CRISTALINO.
The image of the LOTE MAESTRO product was used in an
advertisement for the MAESTRO DOBEL CRISTALINO
in and around September 30, 2021. Beristain Exh. 14 (MT
00666 – 675).11
The referenced Exhibit 14 is a printout of a website for Westchester Wine
Warehouse with product listings found in a search for “Maestro Dobel Anejo
Tequila,”12 which was provided to Ms. Beristain by Petitioner’s counsel.13 Ms.
Beristain herself did not visit the website to create the exhibit, did not have
communications with Westchester Wine Warehouse about use of a wrong picture, and
could “only assume” that there were customers who thought they were purchasing
Maestro Dobel Tequila and received Lote Maestro Tequila instead.14
10 See 53 TTABVUE (motion); 54 and 55 (confidential motion and exhibit); 58 TTABVUE
(order deferring motion), 134 TTABVUE 60 (brief maintaining objection).
11 46 TTABVUE 13 (Beristain Dec.).
12 See id. at 82-92.
13 101 TTABVUE 31, 84 (Beristain Tr.).
14 Id. at 86-88.

Cancellation No. 92074808
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We sustain the objection to paragraphs 55 and 56 of the Beristain declaration and
any deposition testimony of Ms. Beristain concluding that there must have been
actual confusion given the apparent use of an image of Respondent’s product in a
listing for Petitioner’s MAESTRO DOBEL CRISTALINO product. Ms. Beristain had
no personal knowledge of any consumer confusion and could only “assume” it, which
is not a proper basis for testimony. See, e.g., Double Coin Holdings, Ltd. v. Tru Dev.,
No. 92063808, 2019 TTAB LEXIS 347, at *6-13 (sustaining the petitioner’s objection
to testimony by the respondent’s president regarding consumers’ impression of mark
based on lack of personal knowledge and insufficient foundation). However, the
Internet materials at Exhibit 14 to the Beristain Declaration bear the URL and access
date, and are admissible for what is shown on the face of the document, but not for
the truth of its contents. Hangzhou Mengku Tech. Co. v. Shanghai Zhenglang Tech.
Co., No. 91272143, 2024 TTAB LEXIS 575, at *7 (“A URL and date appearing on the
face of Internet documents submitted under cover of testimony . . . is sufficient to
establish authentication.”) (citation omitted); cf. Trademark Rule 2.122(e)(2), 37
C.F.R. § 2.122(e)(2). We also find it appropriate to consider Ms. Beristain’s deposition
testimony reflecting her personal observation that the product shown in the
advertisement is not that of Petitioner.15
B. Petitioner’s Objections
Petitioner requests that we strike the Testimony Declaration of Kathryn Cox,
including her attached Investigative Report, on the ground that her testimony
15 Id. at 87-88.

Cancellation No. 92074808
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constitutes untimely and improper expert opinion.16 Ms. Cox was retained to
“investigate and determine the current (and if possible historical) use of the mark
MAESTRO by itself on tequila.”17 Petitioner argues that Ms. Cox’s testimony is that
of an expert, who was neither disclosed nor qualified as required by the Federal Rules
of Civil Procedure, Federal Rules of Evidence, and Trademark Rules. See Fed. R. Civ.
P. 26(a)(2)(D); Fed. R. Evid. 702; Trademark Rule 2.122(a), 37 C.F.R. § 2.122(a). The
crux of the objection is that Ms. Cox’s testimony necessarily provides her opinion as
to whether the uses of MAESTRO she found were by itself or always accompanied by
an additional term or modifier, as reflected in her conclusion that
During my investigation and as stated in my report, I found
no reference to the mark MAESTRO in connection with
tequila or in connection with Maestro Tequilero or Proximo
Spirits without modifiers. Any references of the mark
MAESTRO I did find in my investigation was [sic]
accompanied by some sort of modifier, additional word, or
additional term.18
Having reviewed Ms. Cox’s testimony declaration and deposition, we deny
Petitioner’s request to exclude the testimony. Ms. Cox testified about what she
personally found in her investigation. For example, Sections 2 through 11 of her
report detail the sources she searched and the results, attaching certain supporting
documentation.19 To the extent Petitioner argues that Ms. Cox’s report fails to attach
16 104 TTABVUE (Petitioner’s motion to strike); 111 TTABVUE (order deferring motion); 139
TTABVUE at 64-72 (maintaining objection).
17 99 TTABVUE 10 (Cox Dec. attaching Investigative Report); 117, 122 TTABVUE (Cox Tr.
and Exhibit).
18 99 TTABVUE 3-4 (Cox Dec. ¶ 7).
19 See id. at 3-5 (Cox Dec. ¶¶ 3-11); 10-43 (Investigative Report).

Cancellation No. 92074808
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copies of materials like websites about which she testifies or that her testimony is
conclusory and not sufficiently detailed,20 such matters go to weight and not
admissibility and we keep them in mind as we consider the testimony.
Fundamentally, however, Petitioner does not appear to disagree with the actual
results of Ms. Cox’s investigation, which we find to be of limited value to our ultimate
conclusion because they do not tell us anything other than what Petitioner concedes
to be the nature of its use of the MAESTRO mark.
We decline to make specific rulings on the parties’ remaining objections, most of
which concern the weight due the evidence rather than its admissibility, and none of
which goes to evidence that is outcome-determinative. Poly-America, L.P. v. Ill. Tool
Works Inc., No. 92056833, 2017 TTAB LEXIS 392, at *4. “Because a cancellation
proceeding is akin to a bench trial, the Board is capable of assessing the proper
evidentiary weight to be accorded the testimony and evidence, taking into account
the imperfections surrounding the admissibility of such testimony and evidence. As
necessary and appropriate, we will point out any limitations in the evidence or
otherwise note that we cannot rely on the evidence in the manner sought.” Peterson
v. Awshucks SC, LLC, No. 92066957, 2020 TTAB LEXIS 520, at *11-12 (citations
omitted). Unless stated otherwise, we have considered all of the testimony and other
evidence introduced into the record, bearing in mind the parties’ objections and
according the testimony and other evidence whatever probative value is warranted.
20 See 139 TTABVUE 71-72.

Cancellation No. 92074808
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III. Counterclaim for Abandonment of Petitioner’s ’848 Registration
We first consider Respondent’s counterclaim seeking to cancel Petitioner’s ’848
Registration, which is among the registrations pleaded by Petitioner in support of its
Amended Petition for Cancellation. Respondent’s entitlement to a statutory cause of
action as counterclaim plaintiff for this claim is inherent in its position as defendant
in the underlying cancellation proceeding. See Harry Winston, Inc. v. Bruce Winston
Gem Corp., No. 91153147, 2014 TTAB LEXIS 284, at *27 (applicant established its
“standing” (now referred to as entitlement) based on opposers’ assertion of their
marks and registrations against applicant).
A. Applicable Law
A mark is deemed to be abandoned when (1) use of the mark “has been
discontinued,” (2) “with intent not to resume such use.” Trademark Act Section 45,
15 U.S.C. § 1127. A mark shall be deemed to be in use in commerce on goods when “it
is placed in any manner on the goods or their containers or the displays associated
therewith or on the tags or labels affixed thereto” and “the goods are sold or
transported in commerce.” Id. If Respondent shows three consecutive years of nonuse
of the MAESTRO mark, it will establish a prima facie case of abandonment, creating
a rebuttable presumption that Petitioner has ceased use of the mark with the
requisite intent not to resume use. On-Line Careline, Inc. v. Am. Online, Inc., 229
F.3d 1080, 1087 (Fed. Cir. 2000). The burden would then shift to Petitioner to produce
evidence that it has either used the mark or that it intended to resume use, with the
ultimate burden of persuasion remaining on Respondent to prove abandonment by a

Cancellation No. 92074808
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preponderance of the evidence. Id.; accord Crash Dummy Movie, LLC v. Mattel, Inc.,
601 F.3d 1387, 1391 (Fed. Cir. 2010). Abandonment is a question of fact. On-Line
Careline, 229 F.3d at 1087.
B. Petitioner’s Alleged Nonuse of the Mark MAESTRO
In support of its claim of abandonment, Respondent contends that Petitioner does
not use—and, indeed, has never used—the mark MAESTRO except as part of a
unitary phrase such as MAESTRO TEQUILERO or MAESTRO DOBEL. Respondent
argues that this is supported by the findings of its investigator, Ms. Cox, who
searched U.S. import records, Certificate of Label Approval (“COLA”) records,
archives, websites, social media, and the Internet at large,21 and that it is
corroborated by Petitioner’s own specimens of use filed in 2009, 2015 and 2019 and
its witness’s testimony.22
To decide the counterclaim, we review the record evidence of Petitioner’s use of its
mark. We begin with the testimony (and excerpted images from the associated
exhibits) of Petitioner’s witness Ms. Beristain, who has worked as Brand Director for
Petitioner’s brand at its U.S. distributor, Proximo Spirits, Inc., since August 1, 2017,
21 99 TTABVUE (Cox Dec. & Exs. A-D); see also 117 TTABVUE 34-40 (Cox Tr. at 31-37).
22 134 TTABVUE 18-21. Respondent intimates that bottles with wooden caps seen in the
specimens for Petitioner’s 2009 statement of use were not sold in the United States but were
only sold in Mexico, citing Ms. Beristain’s testimony about a photo in a 2021 article. See 134
TTABVUE 19 (citing 101 TTABVUE 104-06). This is not relevant because Respondent does
not base its counterclaim on nonuse of MAESTRO at the time the statement of use was due,
a ground for cancellation that was no longer available when this proceeding was filed, see 15
U.S.C. § 1064, or on fraud in procurement of the registration.

Cancellation No. 92074808
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and who is responsible for overseeing the advertising and promotion of the tequila
sold under Petitioner’s Marks.23
16. Maestro Tequilero, through its distributor, Proximo
Spirits, Inc. (“Proximo”) has been selling tequila bearing
the MAESTRO Marks throughout the U.S. since at least as
early as 2008.
17. The invoice for the U.S. consignment of the first
Maestro products bearing any of the MAESTRO Marks
from Casa Cuervo S.A. de C.V. to Proximo dates back to
March 12, 2008. A copy of this Invoice [Bates number
omitted] is attached as Exhibit 1 to this declaration
(hereinafter, “Beristain Exh. ___”)
18. It is my understanding that Proximo made its first sales
of goods bearing the MAESTRO Marks in the United
States in July 2008. Beristain Exh. 2 [Bates number
omitted].
23 46 TTABVUE 2 (Beristain Dec. ¶¶ 2-3).

Cancellation No. 92074808
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19. The MAESTRO Marks have been continuously used in
U.S. commerce in connection with Petitioner’s Goods since
that date.
20. Photographs showing Petitioner’s use of the MAESTRO
Marks on several different product lines are attached.
Beristain Exh. 3 [Bates numbers omitted].

Cancellation No. 92074808
RISERVA DEL
HUMITO DOBEL
MAESTRO
DIAMANTE
DOBEL HAESTRO"
UUNADA Y NUMISRAD
RESERVA OU! MAESTRO
DOBEL MAESTRO
IŠQUILERO
RESERVA DE!
TEQUILA
MAESTRO
MAESTRO DOBEL
RESERVA DES
QUILERC
THEME 80% ALC/YOL. SILVER TIOSILA
MAESTRO TEQUILERO
RESERVADE!
DE CAMPOS SELECTOS
TEQUILA
MAESTRO EQUIL ERO
MONUCCION ANUAL
100% DE AGAVE
MAESTRO DOBEL
TEQUILA
GESHO EN MEXICO
DE CAMPOS SPRECIOS PRODUCE VON ANUAL
HUMITO® SHOKCO SILVER TEQUILA
F33
HECHO EN MEXICO
MAESTRO DOBEL
TADA Y WOMERMA
THANH LỘN ALA SVOL: TEQUILA REPOLADO
HECHO EN MEXICO
MAESTRO" DOBEL DIAMANTE" TOME IONALENVOL TEQUILA REPOSADO
MAESTRO DOBEL
EL 10% ALG./VOL. AÑEJO TEQUILA
TEQUILA
PODARCIÓN TRUTT
100% DE AGAVE
MAESTRO TEQUIL. ERO
- 17 -

Cancellation No. 92074808
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21. Proximo also provides other goods for use in connection
with the promotion of the tequila sold under the
MAESTRO Marks including barware, bottle openers, tap
handles and infusion barrels. The use of such goods serves
to increase brand awareness of the MAESTRO products.
22. Maestro Tequilero and Proximo’s use of the MAESTRO
Marks, has been continuous from the respective dates of
first use through the present day.24
24 Id. at 5-6, 16-24 (Beristain Dec. ¶¶ 16-22 and Exs. 1-3).

Cancellation No. 92074808
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The only evidence Respondent offers in support of nonuse is the testimony of its
investigator, Ms. Cox. However, Ms. Cox did not state that she uncovered no uses of
Petitioner’s Marks in connection with tequila products. Instead, Ms. Cox testified that
all references she found for MAESTRO used with Petitioner’s products had some
other “sort of modifier, additional word, or additional term.”25 This includes her
searches of U.S. import records, websites (including maestrodobel.com and
proximospirits.com among many others), social media accounts (such as
https://www.facebook.com/dobeltequila, https://twitter.com/dobeltequila, and
https://www.instagram.com/dobeltequila) and archived news databases and retailer
websites.26 According to Ms. Cox, on social media,“[a]ny reference to MAESTRO on
its own without any sort of modifier, additional word, or additional term was in
reference to an individual, not a tequila.”27
Ms. Cox’s testimony does not support a finding that Petitioner stopped using
MAESTRO, but is consistent with Ms. Beristain’s testimony about Petitioner’s sales
in the U.S.28 This brings us to the heart of Respondent’s counterclaim, whether
Petitioner’s manner of using MAESTRO is sufficient to avoid abandonment of
trademark rights. We find that it is.
25 99 TTABVUE 3-6 (Cox Dec. ¶¶ 6-7, 9-11).
26 Id. at 4-6 (Cox. Dec. ¶¶ 9-11).
27 Id. at 5 (Cox. Dec. ¶ 11).
28 See, e.g., id. at 4 (Cox Dec. ¶ 9), 12 (Cox Report ¶ 6.2) and 39-43 (Cox Report Ex. D)
(spreadsheet with results of searches of U.S. maritime import records showing imports and
exports of tequila with product descriptions including one or more of Petitioner’s Marks from
each of the years 2013 and 2015-2024); see also 117 TTABVUE 36-37, 55-61 (Cox Tr.).

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It is well settled that a mark need not appear as the only mark—or even the most
prominent mark—on the packaging for goods in order to constitute trademark use.
See Gen. Foods Corp. v. Ito Yokado Co., Ltd., No. 91063721, 1983 TTAB LEXIS 70, at
*6, aff’d mem., No. 84-517 (Fed. Cir. 1984) (“Nothing in the Trademark Act precludes
an owner from using more than one trademark on a product and each may be
separately registered and separately protected.”). The mere fact that two or more
elements form a composite mark does not necessarily mean that those elements are
inseparable for registration purposes. A mark owner has some latitude in selecting
the mark it wants to register and “may seek to register any portion of a composite
mark if that portion presents a separate and distinct commercial impression” which
indicates the source of the goods and distinguishes them from the goods of others. In
re 1175856 Ontario Ltd., No. 78442207, 2006 TTAB LEXIS 468, at *4-5 (citing Institut
National des Appellations D’Origine v. Vintners Int’l Co. Inc., 958 F.2d 1574, 1582
(Fed. Cir. 1992); In re Chem. Dynamics Inc., 839 F.2d 1569, 1571 (Fed. Cir. 1988)). “If
the portion of the mark sought to be registered does not create a separate and distinct
commercial impression, the result is an impermissible mutilation of the mark as
used.” 1175856 Ontario, 2006 TTAB LEXIS 468, at *5. The issue “all boils down to a
judgment as to whether that designation for which registration is sought comprises
a separate and distinct ‘trademark’ in and of itself.” Chem. Dynamics, 839 F.2d at
1571 (quoting 1 J.T. McCarthy, TRADEMARKS AND UNFAIR COMPETITION (McCarthy) §
909 (2d ed. 1984)).

Cancellation No. 92074808
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In considering whether a designation makes a separate and distinct commercial
impression, the circumstances vary widely and each case must be decided on its own
facts. Institut National Des Appellations D’Origine, 958 F.2d at 1582. The mark “as
actually used must not be so entwined (physically or conceptually) with other
material that it is not separable from it in the mind of the consumer.” In re Yale
Sportswear Corp., No. 78653373, 2008 TTAB LEXIS 34, at *5.
We find that Petitioner’s evidence shows its use of MAESTRO as a trademark for
tequila both alone and as part of one or more composite marks. As seen in the images
above, the word MAESTRO appears in several places on the bottles for Petitioner’s
products. In each instance, the word MAESTRO appears on a separate line from other
words, as in the following:
In some instances, MAESTRO appears in a different size font compared to the
words around it, and is even in some instances followed by a trademark registration
symbol, as in the examples below:

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At a minimum, these uses of MAESTRO on a separate line, in a different size font,
and at times with its own trademark registration symbol create a separate and
distinct commercial impression from the other words and matter on the label and
bottle sufficient to constitute use of the MAESTRO mark.
Respondent argues that MAESTRO does not create a separate and distinct
commercial impression because it is always used to modify another word, such as
DOBEL or TEQUILERO.29 We are not persuaded. Even if Respondent’s factual
assertion were true, there is no absolute rule that a term that modifies or is modified
by another term cannot be separately registered; instead, we must consider the
mark’s overall commercial impression based on the particular facts and
circumstances before us. See, e.g., Institut Nat’l Des Appellations D’Origine, 958 F.2d
at 1582-83 (no mutilation found by registering CHABLIS WITH A TWIST instead of
29 134 TTABVUE 25-26.

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CALIFORNIA CHABLIS WITH A TWIST which appeared on specimen); In re Royal
Body Care, Inc., No. 78976265, 2007 TTAB LEXIS 30, at *7-8 (specimen showing
supported registration of NANOCEUTICAL because
“the terms RBC’s and NANOCEUTICAL are separate, not connected. They do create
two separate impressions….”); In re Raychem Corp., No. 73690098, 1989 TTAB
LEXIS 36, at *4-5 (TINEL-LOCK separately registrable where it appeared on
specimen as TRO6AI-TINEL-LOCK-RING).
Nor do we regard MAESTRO as used on Petitioner’s goods to serve only as a
modifier for other words. Respondent argues that
In Spanish, when used as an adjective referring to an
object, the word “maestro” indicates the object is an
exemplary version of the object (e.g. master work, master
plan).… When used as a noun, “maestro” means “master”
or “teacher.”…When used before another noun as a title,
“Maestro” has meaning within the tequila industry: Before
the term “tequilero,” as in “maestro tequilero,” it indicates
a master tequila maker or a “master blender” of tequila.…
The term “maestro,” when it precedes a noun, is also used
as a title outside of the tequila industry, indicating a
person who is an expert or a respected teacher in their
particular industry or area of study.30
Respondent contends that “[t]hroughout the alcohol industry, ‘maestro’ and its
legal equivalents are used with proper nouns to identify the distiller of the relevant
30 134 TTABVUE 14-15 (internal citations to record omitted). Respondent submitted
extensive dictionary evidence of the meanings of “maestro,” “master” and “mastro” in English,
Spanish and Italian, along with its witnesses’ testimony about the meanings of certain of
these terms, as pertaining to alleged abandonment, the similarities or differences of the
marks, and Respondent’s contention that third-party marks using these words weaken
Petitioner’s Marks. We consider Respondent’s evidence and proffered connotations with
respect to each of the issues as appropriate.

Cancellation No. 92074808
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alcohol associated with a brand (e.g. maestro ronero/master rum maker or maestro
mezcalero/master mezcal maker).”31 Thus, Respondent argues, Petitioner’s uses of
MAESTRO in MAESTRO TEQUILERO, MAESTRO DOBEL and its other asserted
marks “are unitary phrases, conveying commercial impressions distinct from what
would be conveyed by MAESTRO alone, so they do not support MAESTRO as a
standalone mark.”32 We have considered all of Respondent’s arguments, but do not
find that consumers would apply direct translations of the word MAESTRO or
consider it only as modifying other words when used in Petitioner’s Marks.
Under the doctrine of foreign equivalents, foreign words from common languages
are translated into English to determine issues such as genericness, descriptiveness
and similarity of connotation when compared to English word marks. Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1377
(Fed. Cir. 2005). “Although words from modern languages are generally translated
into English, the doctrine of foreign equivalents is not an absolute rule and should be
viewed merely as a guideline,” with translation appropriate only when the ordinary
American consumer would stop and translate the word into its English equivalent.
Id. (cited in In re Vetements Grp. AG, 137 F.4th 1317, 1324-25 (Fed. Cir. 2025), cert.
denied, No. 25-215, 2026 U.S. LEXIS 373). “When it is unlikely that an American
buyer will translate the foreign mark and will take it as it is, then the doctrine of
31 Id. at 15.
32 Id. at 26.

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foreign equivalents will not be applied.” Palm Bay Imps., 396 F.3d at 1377 (citing In
re Tia Maria, Inc., 1975 TTAB LEXIS 130, at *41).
Translation is not required when the foreign word “has such a well established
alternative meaning that the literal translation is irrelevant because even [foreign]
speakers would not translate the mark.” In re Spirits Int’l, N.V., 563 F.3d 1347, 1352
(Fed. Cir. 2009); accord Vetements, 137 F.4th at 1323, 1331.
Petitioner’s witness testified, “[g]iven the presence and promotion of the
MAESTRO branded goods at art, fashion and professional sporting events, and in a
broad range of national media, Maestro Tequilero/Proximo’s target consumer for its
MAESTRO branded goods is very broad. It generally consists of all male and female
consumers in the public age 21 or older who have recently purchased tequila or intend
to do so in the near future.”33 This includes those who speak Spanish and those who
do not. That Spanish is a common, modern language, see infra at 40, does not require
translation of “maestro” under the doctrine of foreign equivalents because it is a
known English word that ordinary consumers are unlikely to stop and translate.
“Maestro” appears in multiple American English dictionaries, where it is defined to
mean “a master in an art, especially a composer, conductor, or music teacher”34 or
33 46 TTABVUE 10 (Beristain Dec. ¶ 41).
34 See, e.g., 73 TTABVUE 35-37 (THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE (5th ed. 2011). This case is different from In re Magnesita Refractories Co., 2017
U.S. App. LEXIS 23845, at *2 (Fed. Cir. Nov. 27, 2017), cited by Respondent (134 TTABVUE
48), where there was no mention that MAGNESTIA was a known English word.

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similar.35 Consumers are not likely to translate the word MAESTRO to mean
“teacher” or “master” as opposed to the known, more nuanced English meaning of a
“master in an art.” See, e.g., Cont’l Nut Co. v. Cordon Bleu, 494 F.2d 1395, 1396 (CCPA
1974) (CORDON BLEU has a significance to the American public that is distinct from
its literal translation BLUE RIBBON, precluding application of the doctrine of
foreign equivalents). In the context of Petitioner’s ’848 Registration, we find it
appropriate to treat MAESTRO as an English word.
Respondent does not offer persuasive arguments, or evidence, that the average
consumer’s perception of the overall commercial impression of MAESTRO as used on
Petitioner’s goods would be altered by some asserted uses of the word in a title.
MAESTRO is used in multiple marks appearing on the same bottle, as seen below:
35 See, e.g., 73 TTABVUE 27-29 (MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2009) defining “maestro” as “a master, usu. in an art; esp : an eminent composer, conductor,
or teacher of music”); id. at 31-33 (NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010) defining
“maestro” as “a distinguished musician, esp. a conductor of classical music; a great or
distinguished figure in any sphere”); id. at 47-49 (WEBSTER’S NEW WORLD COLLEGE
DICTIONARY (5th ed. 2018) defining maestro as “a master in any art; esp. a great composer,
conductor, or teacher of music”).
Although there are similarities, these definitions of maestro are more nuanced than English
translations of the Spanish word maestro, which include “teacher” or “master” in addition to
“expert” or “maestro.” See, e.g., 73 TTABVUE 7-9 (The OXFORD SPANISH DICTIONARY provides
first meaning of maestro as “teacher, school-teacher” followed by other meanings including
master in various disciplines); Id. at 15-17 (The UNIVERSITY OF CHICAGO SPANISH
DICTIONARY provides meanings “(docente) (school) teacher; (artesano) master”).
The Italian-English dictionary entries Respondent provides for “maestro” are not relevant
because consumers would understand that tequila originates in Mexico, a Spanish-speaking
country, as indicated by the statement on the goods that they are made in Mexico.

Cancellation No. 92074808
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36
These uses include , “RESERVA DEL MAESTRO TEQUILERO
TEQUILA 100% DE AGAVE” and “BY MAESTRO TEQUILERO.” Respondent
submitted evidence that “maestro tequilero” refers to the person in charge of tequila
36 46 TTABVUE 42-47 (Beristain Dec. Ex. 6).

Cancellation No. 92074808
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distilling or blending37 and similar use of “maestro” to denote the person in charge of
making mezcal (“maestro mezcalero”) and rum (“maestro ronero”).38
It may be the case that some American consumers are aware of uses of “maestro
tequilero” as a sort of term of art within the tequila industry. However, this does not
mean that MAESTRO fails to make a separate and distinct commercial impression
on the average consumer. As even Respondent argues, consumers can accept that a
word may have slightly different connotations when used with some words than with
others. Just because there are uses of the word for a blender or distiller of tequila in
Mexico, the country of origin for tequila, does not preclude consumers from
understanding MAESTRO as used in Petitioner’s marks to convey its commonly
understood English meaning. Although not necessary to our conclusion, this
understanding is supported by articles referring to Petitioner’s products as “Maestro
Tequila” or the “Maestro Tequila brand.”39
37 See, e.g., 63 TTABVUE 7 (Joel Dec. ¶¶ 26, 27, 29); 68 TTABVUE 16 (Hermosillo Dec. ¶ 9
(“‘Maestro Tequilero’ is a title that refers to someone very knowledgeable in the tequila
distillation process. Tequila distillers have one or more Maestro Tequileros at the distillery
to oversee agave cultivation, develop new formulas, develop or modify the distillation process,
the aging process, and generally oversee the production of one or more tequila formulas.
These functions are analogous to the functions of a master in the distillation of whiskey or a
master brewer in a brewery.”). See also 63 TTABVUE 9, 50-52 (Joel Dec. ¶ 39, Ex. F); 71
TTABVUE 13, 17, 44, 54 (examples of other uses of “maestro tequilero”).
38 63 TTABVUE 9-11, 53-62 (Joel Dec. ¶¶ 40-45 and Exs. G-H); 71 TTABVUE 21, 28, 49
(examples of uses with mezcal and rum).
39 See 86 TTABVUE 11 (article stating “Maestro tequila is [a] Cuervo product”); 46 TTABVUE
70-74 (article referring to the “Maestro Tequila brand”). Respondent argues that at least one
of these articles is foreign (see 134 TTABVUE 34-35) but both articles are written in English,
accessible in the U.S., and are addressed broadly to people interested in travel to Mexico or
tequila. We therefore consider the articles probative of consumer impressions generally,
including those of U.S. consumers. See In re Bayer AG, 488 F.3d 960, 969 (Fed. Cir. 2007)
(depending on the circumstances, “[i]nformation originating on foreign websites or in foreign

Cancellation No. 92074808
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With respect to MAESTRO DOBEL, Respondent notes that Petitioner is owned
by the Beckmann family, and reasons that
Its MAESTRO DOBEL brand refers to patriarch Juan
Beckmann’s son, Juan Domingo Beckmann Legorreta
(“Dobel” is a portmanteau of his name: Domingo
Beckmann Legorreta). “Maestro Dobel” translates to
“Master Dobel” because “Dobel” is a proper noun.40
Through Mr. Beth, Respondent submitted evidence about the origin of MAESTRO
DOBEL including:
• Article in Detroit Metrotimes stating “The first-ever multi-aged clear
tequila, Maestro Dobel is a fairly new player in the agave scene. Founded
in 2008, the brand was created by Domingo ‘Dobel’ Beckmann, the 11th
generation leader of Jose Cuervo. He worked with master tequila distillers
Marco Anguiano and Luis Yerenas, which is where the ‘maestro’ in Maestro
Dobel comes from.”41
• Empire Wine website stating “Dobel was created by and named after Juan-
Domingo ‘Dobel’ Beckmann, the eleventh-generation leader of Jose Cuervo
tequilas, in collaboration with master distillers (‘Maestros’) Marco
Anguiano and Luis Yerenas….”42
These articles do not show that the words MAESTRO and DOBEL are inseparable;
indeed, they state that MAESTRO refers to persons other than the scion of the
Cuervo family. Petitioner’s witness Ms. Beristain testified that Mr. Legoretta is
news publications that are accessible to the United States public may be relevant to discern
United States consumer impression of a proposed mark”); In re Well Living Lab Inc., No.
86440401, 2017 TTAB LEXIS 156, at *12 n.10 (discussing considerations including whether
websites are in English and nature of the goods), aff’d mem. 749 Fed. Appx. 987 (Fed. Cir.
2018).
Evidence that consumers, and Petitioner itself at times, refer to the brand as DOBEL, see,
e.g., 134 TTABVUE 34 (noting that Petitioner uses social media handle “Dobel Tequila”), is
not to the contrary, as nothing precludes use of more than one mark for a product.
40 134 TTABVUE 9 (emphasis in original).
41 63 TTABVUE 8, 41-43 (Joel Dec. ¶¶ 35-36 and Ex. D).
42 Id. at 9, 46-49 (Joel Dec. ¶¶ 37-38 and Ex. E).

Cancellation No. 92074808
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“referred to as ‘Juan Dobel’ for marketing purposes, an 11th generation tequila
master descended directly from Jose Cuervo.”43 But like the articles quoted above,
the few pieces of record evidence where we find Petitioner publicly mentioning “Juan
Dobel”44 do not equate him with MAESTRO, as in a label on the back of Petitioner’s
bottles indicating that the brand’s “Expert Tequila Distiller” is someone else:
45
As stated above, we do not believe MAESTRO should be translated to “master” (as
in “master distiller”) in Petitioner’s Marks. And there is no evidence that “Dobel” is a
known surname or of the extent to which consumers are aware of the significance of
DOBEL in Petitioner’s Marks. MAESTRO DOBEL would not necessarily be perceived
as unitary and inseparable, particularly by consumers unfamiliar with the derivation
of DOBEL, or by consumers who are aware of the derivation but know that others are
43 46 TTABVUE 3 (Beristain Dec. ¶ 10).
44 The only references we find to this significance on Petitioner’s goods are signatures
appearing on the back of the bottle See id. at 42-49 (Beristain Dec. Ex. 6). Even articles about
a marketing collaboration emphasizing DOBEL do not mention Mr. Legoretta or “Juan
Dobel.” See 101 TTABVUE 44-46, 136-43 (Beristain Dep. and Exs. 4-6).
45 46 TTABVUE 47.

Cancellation No. 92074808
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credited as being the “maestro” behind the brand. And “[e]ven terms that are
connected may still create separate commercial impressions.” Royal Body Care, 2007
TTAB LEXIS 30, at *7. We find that to be the case here.
Respondent has failed to show Petitioner’s nonuse of the MAESTRO mark. The
counterclaim for cancellation of Petitioner’s ’848 Registration based on abandonment
is denied.
IV. Petitioner’s Claim Based on Likelihood of Confusion
A. Petitioner’s Entitlement and Priority
Entitlement to a statutory cause of action is a requirement that must be proven
by the plaintiff in every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d
1298, 1303 (Fed. Cir. 2020). To do so, a plaintiff must demonstrate: (i) an interest
falling within the zone of interests protected by the statute and (ii) a reasonable belief
in damage proximately caused by registration of the mark in violation of the statute.
Curtin, 137 F.4th at 1364-65, 1367 (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 120-37 (2014)). Section 14 of the Trademark Act, 15
U.S.C. § 1064, provides that a petition to cancel may be filed “by any person who
believes that he is or will be damaged ... by the registration of a mark.” Under
Trademark Act Section 14(1), a cancellation action may be brought on the ground of
likelihood of confusion before a registration is five years old, see 15 U.S.C. § 1064(1),
and this action is timely because Respondent’s involved registrations issued in
August and September 2019 and the petition was filed in July 2020. The record
includes status and title copies of Petitioner’s Registrations, which support a

Cancellation No. 92074808
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plausible likelihood of confusion claim and establish Petitioner’s entitlement to a
statutory cause of action for cancellation of Respondent’s registrations. Cunningham
v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000) (pleaded registrations and
products sold under the mark “suffice to establish ... direct commercial interest”; a
belief in likely damage can be shown by establishing a direct commercial interest);
see also Look Cycle Int’l v. Kunshan Qiyue Outdoor Sports Goods Co., No. 92079409,
2024 TTAB LEXIS 289, at *7-8.
“In a cancellation proceeding such as this one where both parties own
registrations, priority is in issue.” Double Coin, 2019 TTAB LEXIS 347, at *14
(citation omitted). Petitioner must prove that it has a proprietary interest in its
pleaded marks obtained before any date of priority on which Respondent may
rely. Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 TTAB LEXIS 464, at *19.
To do so, Petitioner may rely on the filing dates of the applications underlying its
pleaded registrations. See, e.g., Look Cycle, 2024 TTAB LEXIS 289, at *9 (“Under
Section 7(c) of the Trademark Act, 15 U.S.C. § 1057(c), a party may rely upon the
filing date of the application underlying its registration for purposes of priority as its
constructive use date.”). Having not submitted evidence of earlier use,46 Respondent
may rely on the August 9, 2018 and October 18, 2018 filing dates of the applications
underlying its LOTE MAESTRO standard character and LOTE MAESTRO word and
design registrations, respectively. The latest filing date for any of Petitioner’s
46 See, e.g., 68 TTABVUE 18 (Hermosillo Dec. ¶ 22) (LOTE MAESTRO brand launched in
2019).

Cancellation No. 92074808
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Registrations is July 5, 2018,47 preceding Respondent’s constructive use priority dates
and establishing Petitioner’s priority.
B. Applicable Law
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant [or registrant], to cause confusion [or] mistake, or to deceive.”
In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up).
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion under the factors set forth in
In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”).
We consider all DuPont factors for which there is argument and evidence of record.
See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019). Varying weights
may be assigned to each DuPont factor depending on the evidence presented. See
Charger Ventures, 64 F.4th at 1381 (“In any given case, different DuPont factors may
play a dominant role and some factors may not be relevant to the analysis.”) (citing
Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367, 1370 (Fed. Cir. 2002)).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 1199 (CCPA 1973). However,
in any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See Federated
47 47 TTABVUE 6-103 (TDSR printouts showing application filing dates between August 29,
2003 and July 5, 2018 for each of Petitioner’s Registrations).

Cancellation No. 92074808
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Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The
fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences
in the essential characteristics of the goods and differences in the marks.”).
We focus on the standard character mark MAESTRO in Petitioner’s ’848
Registration, because this mark is most similar to Respondent’s involved marks.
Because we find confusion likely as to Petitioner’s MAESTRO mark, we need not
consider whether there is a likelihood of confusion between Respondent’s marks and
Petitioner’s other pleaded marks. See Heil Co., 2024 TTAB LEXIS 494, at *45.48
Moreover, in view of the presumptions afforded Petitioner by the registration under
Trademark Act Section 7(b), 15 U.S.C. § 1057(b), we can decide the claim without
reaching the more fact-intensive considerations involved with common law rights in
the same mark.
C. Similarity or Dissimilarity of the Goods, Trade Channels and
Classes of Consumers, and the Conditions of Sale
Under the second, third and fourth DuPont factors, we consider the “similarity or
dissimilarity and nature of the goods,” the “similarity or dissimilarity of established,
likely-to-continue trade channels,” and the “conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing,”
respectively. DuPont, 476 F.2d at 1361. We base our comparisons of the nature of the
goods, channels of trade and classes of consumers on the goods as identified in the
48 For this reason, we also need not decide whether Petitioner properly pled, or has proven, a
family of MAESTRO marks. See 134 TTABVUE 79-81 (appendix to Respondent’s brief
arguing that Petitioner did not plead ownership of a family of marks and objecting to
consideration of a family). We do not rely on a family of marks in this case.

Cancellation No. 92074808
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parties’ registrations. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317,
1323-25 (Fed. Cir. 2014) (consumer sophistication must be based on identified goods
and services, not on current use); Sabhnani, 2021 TTAB LEXIS 464, at *25 (“[A]s
with the relatedness of the goods, the similarity or dissimilarity of the channels of
trade must be determined based on the identifications of goods in the parties’
registrations rather than current real-world conditions.”).
The goods identified in Respondent’s registrations, “alcoholic beverages, except
beer,” encompass the “tequila” identified in Petitioner’s ’848 Registration. See
Monster Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *20 (“If an
application or registration describes goods or services broadly, and there is no
limitation as to their nature, it is presumed that the registration encompasses all
goods or services of the type described.”) (cleaned up). Thus, the goods are legally
identical in part. See, e.g., In re Medline Indus., Inc., No. 87680078, 2020 TTAB
LEXIS 16, at *13 (applicant’s “medical examination gloves” were legally identical to
registrant’s “gloves for medical use” and “protective gloves for medical use”).
Neither identification contains any limitations on the channels of trade and
because the goods are in-part legally identical, we must presume that they flow
through the same trade channels to the same classes of consumers with respect to
the legally identical goods. See In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012)
(“[I]t is well established that, absent restrictions in the application and registration,
[identical] goods and services are presumed to travel in the same channels of trade to
the same class of purchasers.”) (cleaned up), cited in Cai v. Diamond Hong, Inc., 901

Cancellation No. 92074808
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F.3d 1367, 1372 (Fed. Cir. 2018); see also Stone Lion, 746 F.3d at 1323 (Board
correctly presumed that the trade channels and consumers were the same with
respect to the parties’ legally identical services).
Turning to purchasing conditions, purchaser sophistication and care may
minimize likelihood of confusion while impulse purchases of inexpensive items may
tend to have the opposite effect. Palm Bay Imps., 396 F.3d at 1376. Petitioner argues
that, given this principle, “the Board must assume that the purchasers of the parties’
goods include ordinary consumers who purchase goods on impulse,”49 whereas
Respondent argues that its tequila is priced as high as $100 per bottle and “would
tend to appeal to connoisseurs.”50
Because the identifications of goods in Respondent’s and Petitioner’s registrations
do not include any price restrictions, we must consider that the parties’ goods are sold
at all of the normal price points for such goods. Sock It To Me, Inc. v. Fan, No.
91230554, 2020 TTAB LEXIS 201, at *24-25 (where there are no limitations in the
identification, goods encompass “all goods of the type identified, without limitation
as to their nature or price”) (citation omitted).
The evidence shows that tequila may be offered at a wide range of prices. Lucas
Perez, Brand Ambassador and U.S. Sales Director for Respondent’s Mexican export
49 125 TTABVUE 48.
50 134 TTABVUE 45. We do not find the cases cited by Respondent to be persuasive because
they are district court infringement cases where, unlike a Board proceeding, it is appropriate
to consider “the full range of a mark’s usages, not just those in the application.” B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 145 (2015).

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company, testified that he has seen tequila offered at Costco for under $15 to over
$1,000 and at Total Wine & More for under $10 to a couple thousand dollars.51
Respondent’s argument that consumers of its higher-priced goods are
sophisticated and less likely to be confused is misplaced. Because its goods are not
restricted as to quality or price, they are presumed to include products offered across
the range of typical prices for such goods. Cf. In re Aquitaine Wine USA, LLC, No.
86928469, 2018 TTAB LEXIS 108, at *29 (“Wine purchasers are not necessarily
sophisticated or careful in making their purchasing decisions, and where, as here, the
goods are identified without any limitations as to trade channels, classes of
consumers or conditions of sale, we must presume that Applicant’s and Registrant’s
wine encompasses inexpensive or moderately-priced wine.”). The evidence here shows
that the goods include both high priced goods and lower priced goods that could
appeal to ordinary consumers purchasing on impulse, and we must base our decision
on those least sophisticated potential purchasers. Look Cycle, 2024 TTAB LEXIS 289,
at *13 (citing Stone Lion, 746 F.3d at 1325).
D. Similarity or Dissimilarity of the Marks
We turn now to the first DuPont factor, which considers “[t]he similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression.” DuPont, 476 F.2d at 1361. “Similarity in any one of
these elements may be sufficient to find the marks confusingly similar.” In re Inn at
51 See 120 TTABVUE 52-53 (Perez Tr.); 65 TTABVUE 2-3 (Perez Dec. ¶¶ 1, 3-8) (describing
responsibilities).

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St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13 (citation omitted), aff’d
mem., 777 Fed. App’x 516 (Fed. Cir. 2019). “The proper test is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Cai, 901 F.3d at 1373
(quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir.
2012)) (cleaned up). “On the other hand, in articulating reasons for reaching a
conclusion on the issue of confusion, there is nothing improper in stating that, for
rational reasons, more or less weight has been given to a particular feature of a mark,
provided the ultimate conclusion rests on consideration of the marks in their
entireties.” In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (quoted in
Coach Servs., 668 F.3d at 1368). We focus “on the recollection of the average customer,
who retains a general rather than specific impression of the marks.” Inter IKEA Sys.
B.V. v. Akea, LLC, No. 91196527, 2014 TTAB LEXIS 166, at *17-18 (citations
omitted). In comparing the marks, we must consider marks in their entireties and in
light of the fallibility of memory. See, e.g., In re St. Helena Hosp., 774 F.3d 747, 751
(Fed. Cir. 2014). Where, as here, the goods are in-part legally identical, a lesser degree
of similarity between the marks may be sufficient to give rise to a likelihood of
confusion. See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877
(Fed. Cir. 1992) (“When marks would appear on virtually identical goods or services,
the degree of similarity necessary to support a conclusion of likely confusion
declines.”); Alfacell Corp. v. Anticancer, Inc., No. 92032202, 2004 TTAB LEXIS 441,

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at *12 (lesser degree of similarity required “when marks are applied to legally
identical goods”).
Respondent’s marks are LOTE MAESTRO in standard characters and LOTE
MAESTRO and design . Each mark incorporates Petitioner’s
MAESTRO mark in its entirety, creating similarities in appearance, sound and
connotation from use of the identical word. See Double Coin, 2019 TTAB LEXIS 347,
at *20 (although there is no explicit rule that such marks are similar, “[l]ikelihood of
confusion often has been found where the entirety of one mark is incorporated within
another”) (citation omitted).
We find that MAESTRO is the dominant element in both of Respondent’s marks.
The record contains evidence that LOTE is a Spanish word meaning “batch,” “lot” or
“plot” (of land).52 The evidence shows that LOTE has descriptive significance with
52 See, e.g., 67 TTABVUE 6-20 (dictionary definitions for “lote”); 119 TTABVUE 25
(Hermosillo Tr.) (as used in LOTE MAESTRO, “the lote refers to a product or a group of
products”).

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respect to the goods, as reflected in its use on Respondent’s product to identify the
particular batch of tequila contained in the bottle:53
Respondent concedes that in its marks “Lote” means “batch,” “lot,” or “plot,” and
“lote maestro” means “masterful plot” or “masterful batch.”54 LOTE, as used in LOTE
53 See 123 TTABVUE 116-17 (Beth Tr.) (testifying that “Lote” in orange followed by a number
is the batch number of that particular tequila); 168, 172 (excerpts of Beth Dep. Ex. 5) (oval
added to indicate position of matter shown in close up). See also 119 TTABVUE 37-38
(Hermosillo Tr.) (lot designation preceded by “lote” appears on all bottles of LOTE MAESTRO
tequila).
54 134 TTABVUE 9, 16. We agree that it is appropriate to translate at least the word LOTE
in LOTE MAESTRO. The Board has consistently found that Spanish is a modern language
commonly used in the United States. See, e.g., Ricardo Media Inc. v. Inventive Software, LLC,
No. 91235063, 2019 TTAB LEXIS 283, at *19; In re Aquamar, Inc., No. 85861533, 2015 TTAB
LEXIS 178, at *12-13. As in those cases, we take judicial notice that, as of 2019, Spanish was
the most spoken non-English language in the United States, with over 41 million speakers.
See Language Use in the United States: 2019, https://www.census.gov
/library/publications/2022/acs/acs-50.html (last visited February 2026); see also; 134
TTABVUE 48 (Respondent’s arguments presume that Spanish is a common language). An
ordinary American consumer who is familiar with both Spanish and English would perceive

Cancellation No. 92074808
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MAESTRO, therefore has little source identifying significance. Cf. Cunningham, 222
F.3d at 947 (“the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on likelihood of confusion.’”) (quoting Nat’l Data Corp., 753 F.2d
at 1060). This is the case even though LOTE is the first word in the marks. See, e.g.,
Double Coin, 2019 TTAB LEXIS 347, at *22-23 (citing cases and reasoning that
“ROAD WARRIOR looks, sounds, and conveys the impression of being a line
extension of WARRIOR”).
When comparing the marks, we also consider any strength or weakness that has
been shown for Petitioner’s mark. Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1236
(Fed. Cir. 2025). As explained below in our discussion of the fifth and sixth DuPont
factors, infra at 46, we do not find that MAESTRO has commercial strength, or
weakness, impacting our assessment of similarity. We find that MAESTRO is
somewhat suggestive and not particularly strong conceptually, but it remains
dominant as a source identifier compared to the concededly descriptive word “lote” in
Respondent’s mark. See, e.g., Sage Therapeutics, Inc. v. SageForth Psychological
Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139, at *33 (citing inter alia In re Great
Lakes Canning, Inc., No. 73365360, 1985 TTAB LEXIS 75, at *7 (“the fact that a mark
may be somewhat suggestive does not mean that it is a ‘weak’ mark entitled to a
limited scope of protection”)).
LOTE as having its direct translation as batch, lot, or plot. See Vetements, 137 F.4th at 1327-
28 (in an application for VETEMENTS for shirts, skirts and other clothing items, translation
of “vetements,” “a simple and common word—the word for clothing” was appropriate because
an appreciable number of Americans are capable of translating the term from French to
English).

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Respondent nonetheless argues that consumers would perceive the literal portions
of the parties’ marks differently due to differences in meaning and connotation:
The opening ‘lote’ in LOTE MAESTRO is a noun, and the
following word ‘maestro,’ is an adjective modifying ‘lote.’
‘Lote’ means ‘batch,’ ‘lot,’ or ‘plot,’ and modified by the
adjective ‘maestro,’ or, ‘masterful,’ means ‘master batch,’
‘masterful batch,’ ‘masterful lot,’ or ‘masterful plot.’ LOTE
MAESTRO’s meaning and commercial impression is
therefore unlike the meaning of MAESTRO DOBEL,
MAESTRO TEQUILERO, or RESERVA DEL MAESTRO.
‘Maestro’ in the phrases ‘maestro tequilero’ (master tequila
maker) or ‘Maestro Dobel’ (Master Dobel), works in
conjunction with the words that follow it to evoke a person
who creates tequila, a meaning that is simply not available
in LOTE MAESTRO, where the relevant noun is not a
person but a thing—specifically a batch, lot, or plot.
Similarly, ‘maestro’ in the descriptive phrase ‘reserva del
maestro’—as demonstrated by Petitioner’s consistent use
of it within the longer phrase ‘reserva del maestro
tequilero’—works in conjunction with the possessive ‘del’ to
create a commercial impression in which ‘maestro’ is,
again, a person.55
We do not find that consumers would perceive such different connotations from
the words in the respective marks. Consumers familiar with Spanish who understand
LOTE MAESTRO to mean “masterful batch” would also be familiar with the more
nuanced connotation of MAESTRO as a “master in an art.” Yet consumers, including
those members of the public age 21 and over who purchase tequila and other alcoholic
beverages, retain general rather than specific impressions of marks and are unlikely
to notice or recall the linguistic differences urged by Respondent. Comparing the
standard character marks, MAESTRO and LOTE MAESTRO are obviously not
55 134 TTABVUE 43-44 (internal citations omitted, emphasis in original).

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identical, but the test is not a side-by-side comparison. When considered in their
entireties, we find that the overall impressions engendered by Petitioner’s MAESTRO
mark and Respondent’s LOTE MAESTRO mark are quite similar in the context of
the legally identical goods.
We next compare Petitioner’s MAESTRO mark with Respondent’s word and
design mark, , which “consists of a three-dimensional
configuration comprising a singular concave bottle with alternating right side up and
upside down triangular shapes with the front facing upright triangle containing the
stylized wording ‘LOTE’ above the stylized wording ‘MAESTRO’ with a stylized
raised design of a plate having grapes and a skewered piece of crescent shaped food
at the bottom of the front facing triangle. The bottle stopper is an overall diamond
jewel shape. The broken lines depicting the neck of the bottle and the perimeter of

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the stopper indicate placement of the mark on the goods and are not part of the
mark.”56
Comparing the marks in their entireties, Respondent’s word and design mark
contains additional features not present in Petitioner’s standard character
MAESTRO mark, which create visual differences that might be noticed, particularly
when the marks are viewed side-by-side. Respondent disclaimed exclusive rights in
“the alternating triangular facets and tapered shape of the bottle and of the jewel-
shaped faceted stopper.” The disclaimer does not remove this matter from the mark
but effectively concedes that it is not inherently distinctive as applied to the goods.
Disclaimed matter generally will not constitute the dominant part of a mark. See In
re Detroit Athletic Co., 903 F.3d 1297, 1309 (Fed. Cir. 2018). Visually, the raised food
design is somewhat large, but it is placed near the bottom of the front facet and is
both understated and decorative in appearance. Considering Respondent’s word and
design mark in its entirety, the eye is drawn to the words appearing in dark font at
the center of the bottle’s front facet.
As for sound, connotation and commercial impression, we consider that the words
LOTE MAESTRO have greater source-identifying significance than the design
elements because they are the only verbal elements and purchasers are more likely
56 Registration No. 5846859. Respondent contends, in passing, that Petitioner waived its
claim for cancellation of the LOTE MAESTRO and design mark “[b]y declining to offer any
argument as to how GPH’s design mark is confusingly similar to Petitioner’s marks in its
[opening brief].” 134 TTABVUE 39. We do not find that Petitioner waived its claim for
cancellation of the LOTE MAESTRO and design mark, which was mentioned specifically in
Petitioner’s opening brief, and also argued in Petitioner’s reply brief. 125 TTABVUE 11
(defining “LOTE MAESTRO Marks” to include both the standard character and word and
design marks), 17; 139 TTABVUE 36-38.

Cancellation No. 92074808
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to recall and use the words to ask for the goods. See, e.g., Viterra, 671 F.3d at 1362
(“In the case of a composite mark containing both words and a design, the verbal
portion of the mark is the one most likely to indicate the origin of the goods to which
it is affixed.”) (cleaned up). Under all of the circumstances, including the disclaimer
of certain elements in Respondent’s composite mark, it is reasonable to accord the
words greater weight in our analysis. See, e.g., Charger Ventures, 64 F.4th at 1382
(Board’s decision to focus on dominant portions of a mark was supported by
substantial evidence).
As for the words, LOTE appears above and in a larger font than MAESTRO, likely
emphasizing the connotation of the words as a high quality batch of tequila.57 The
visual prominence of LOTE is tempered somewhat by its descriptive meaning. The
font itself is a simple one, and because Petitioner’s MAESTRO mark is in standard
characters, it could be displayed in any presentation and font size or style, including
that used in Respondent’s composite mark.
Ultimately, in comparing the marks, we are mindful that under actual marketing
conditions, consumers do not necessarily have the luxury of making side-by-side
comparisons, and must rely on their recollections of marks, which are normally
general, rather than specific.
57 See, e.g., 119 TTABVUE 24 (Hermosillo Tr.) (“lote maestro” means a high-quality product);
65 TTABVUE 6 (Perez Dec. ¶ 26) (“the connotation of the LOTE MAESTRO brand is of a
high quality batch of tequila, the cream of the crop, or the best of the best”).

Cancellation No. 92074808
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E. Strength or Weakness of Petitioner’s MAESTRO Mark
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc.
v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). The fifth DuPont factor enables
Petitioner to prove that its pleaded mark is entitled to an expanded scope of
protection by adducing evidence of “[t]he fame of the prior mark (sales, advertising,
length of use),” whereas the sixth DuPont factor allows Respondent to contract that
scope of protection by adducing evidence of “[t]he number and nature of similar marks
in use on similar goods [or services].” Made in Nature, 2022 TTAB LEXIS 228, at *23-
24 (quoting DuPont, 476 F.2d at 1361).
In considering commercial strength, we assess the extent to which the relevant
public recognizes a mark as denoting a single source. See, e.g., Joseph Phelps
Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-1325 (Fed. Cir.
2017); accord Palm Bay Imps., 396 F.3d at 1375 (fame for confusion purposes arises
as long as a significant portion of the relevant consuming public recognizes the mark
as a source indicator). Commercial strength, or fame, “may be measured indirectly,
among other things, by the volume of sales and advertising expenditures of the goods
traveling under the mark, and by the length of time those indicia of commercial
awareness have been evident.” Omaha Steaks Int’l v. Greater Omaha Packing Co.,
908 F.3d 1315, 1319 (Fed. Cir. 2018) (quoting Bose, 293 F.3d at 1371). Commercial
strength may also be measured by “widespread critical assessments; notice by
independent sources of the goods or services identified by the marks; the general
reputation of the goods or services; and social media presence.” See Heil Co., 2024

Cancellation No. 92074808
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TTAB LEXIS 494, at *51. If proven, fame “plays a dominant role in the process of
balancing the DuPont factors.” Palm Bay Imps., 396 F.3d at 1374 (cleaned up).
“Because of the extreme deference that we accord a famous mark in terms of the wide
latitude of legal protection it receives, and the dominant role fame plays in the
likelihood of confusion analysis, it is the duty of the party asserting that its mark is
famous to clearly prove it.” Made in Nature, 2022 TTAB LEXIS 228, at *35-36 (citing
Coach Servs., 668 F.3d at 1367).
Petitioner argues that its MAESTRO mark is well-known and famous and
therefore enjoys a broad scope of protection. In support, Petitioner first points to its
confidential advertising and sales figures, which it argues are comparable to prior
cases in which a mark was found to be famous for purposes of the fifth DuPont
factor.58 Ms. Beristain testified in some detail about Petitioner’s advertising and
promotion in the United States for its goods sold under the MAESTRO marks. This
includes various types of mass media advertising, “tactical advertising” including
tastings and sampling events, and sponsorships, such as the Official Tequila of the
Professional Golfers Association (PGA) Tour and Miami’s Design Week.59 According
to Ms. Beristain, Petitioner’s tequila products have received a number of awards.60
Ms. Beristain testified generally that sales of goods sold under Petitioner’s Marks
have grown annually since the products were introduced in 2008, with sales nearly
58 125 TTABVUE 40-41.
59 44 TTABVUE 9-10 (confidential) (Beristain Dec. ¶¶ 33-40); 46 TTABVUE 9-10 (public).
60 See 46 TTABVUE 11-12 (Beristain Dec. ¶ 47).

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doubling between 2017 and 2022.61 She provided confidential U.S. sales and
marketing figures for 2021 and estimated figures for 2022.62
Defendant argues that “Petitioner’s uncontextualized sales and advertising
numbers are insufficient on their own to show that Petitioner’s marks are strong,
particularly because Petitioner primarily uses its trademarks all together, limiting
the extent to which its numbers can ascribe strength to any one of its marks alone.”63
We have considered Petitioner’s evidence and the caselaw cited in its brief, as well
as Respondent’s arguments. We find the limited raw numbers provided by Petitioner
to be appreciable, but there is no contextual evidence, such as market share, product
rankings or information about the extent or reach of Petitioner’s advertising. When
it comes to sales and advertising figures, “raw numbers alone in today’s world may
be misleading.” Bose, 293 F.3d at 1375 (quoted in Omaha Steaks, 908 F.3d at 1320-
21) (contextual evidence regarding the opposer’s advertising showed that consumers
were regularly exposed to its marks on a nationwide scale). Petitioner provides
evidence that its product is the “official tequila” of various PGA tournaments,64 but
offers no information about the reach of such advertising that could provide insight
about the extent of consumer exposure to Petitioner’s brand. See Keystone Consol.
Indus. v. Franklin Inv. Corp., No. 92066927, 2024 TTAB LEXIS 290, at *49 (general
61 46 TTABVUE 8 (Beristain Dec. ¶ 32).
62 44 TTABVUE 8-9, 10, 26-28 (confidential) (Beristain Dec. ¶¶ 32, 35, 42-43 and Ex. 15).
63 134 TTABVUE 52 (citing ProMark Brands, Inc. v. GFA Brands, Inc., No. 91194974, 2015
TTAB LEXIS 67).
64 46 TTABVUE 10, 66 (Beristain Dec. ¶ 40 and Ex. 10).

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testimony about advertising was of limited probative value without evidence of the
frequency, extent of distribution or reach of such advertising).
Although Petitioner does not offer evidence of the extent to which its sales and
advertising figures are attributable to MAESTRO as opposed to other branding
elements such as the word DOBEL, all of its tequila bottles bear MAESTRO in
multiple places, and Petitioner provided evidence that in 2020 and 2021 it engaged
in social media advertising featuring the word MAESTRO.65 Between 2020 and 2022,
when Petitioner’s sales increased significantly, its MAESTRO-branded products
received at least 20 awards, including medals at multiple competitions and the 2020
Bartender Spirits Tequila of the Year Award.66
We find that, taken together, the evidence reflects at most a modest level of
commercial success under the fifth DuPont factor.
Implicating the sixth DuPont factor, Respondent argues that “extensive third-
party use renders Petitioner’s mark conceptually weak” because
“‘Maestro’ and its legal equivalents have a common meaning as ‘master’ in the alcohol
industry as well as in everyday parlance.”67 Respondent contends that Petitioner
acknowledged the weakness of its mark during prosecution of the application that
matured into the ’848 Registration.
65 See, e.g., id. at 11, 50-60 (Beristain Dec. ¶ 46, Exs. 4 and 5; see also Ex. 7). The extent of
this advertising is unclear, and may include advertising from Mexico, but at least one of the
exhibits shows a Facebook post in English with the words “EXPERIENCE MAKES THE
MAESTRO” above a bottle of Petitioner’s MAESTRO DOBEL HUMITO product. Id. at 51.
66 See id. at 11-12 (Beristain Dec. ¶ 47).
67 134 TTABVUE 48.

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“There are two prongs of analysis for a mark’s strength under the sixth factor:
conceptual strength and commercial strength.” Spireon, 71 F.4th at 1362 (citing
McCarthy § 11:80). “[T]he strength of a mark is not a binary factor, but varies along
a spectrum from very strong to very weak.” In re Coors Brewing Co., 343 F.3d 1340,
1345 (Fed. Cir. 2003).
Conceptual strength is a measure of a mark’s distinctiveness, “often classified in
categories of generally increasing distinctiveness[:] ... (1) generic; (2) descriptive; (3)
suggestive; (4) arbitrary; or (5) fanciful.” Spireon, 71 F.4th at 1362. As noted above,
the word MAESTRO appears in the dictionary, where its definitions include “a
master in an art, especially a composer, conductor, or music teacher.” Petitioner’s ’848
Registration for the MAESTRO word mark is on the Principal Register without a
claim of acquired distinctiveness, so the mark is presumed to be inherently distinctive
for tequila. Trademark Act Section 7(b), 15 U.S.C. § 1057(b); Brooklyn Brewery Corp.
v. Brooklyn Brew Shop, LLC, 17 F.4th 129, 147 n.7 (Fed. Cir. 2021).
“Evidence of third-party use of similar marks on similar goods is relevant to show
that a mark is relatively weak and entitled to only a narrow scope of protection.” Apex
Bank, 156 F.4th at 1235 (quoting Palm Bay Imps., 396 F.3d at 1373). “The purpose
of introducing evidence of third-party use is to show that customers have become so
conditioned by a plethora of such similar marks that customers have been educated
to distinguish between different [such] marks on the bases of minute distinctions.”
Omaha Steaks, 908 F.3d at 1324 (cleaned up). Such evidence tends to indicate a lack
of commercial strength, while third-party registration evidence without proof of use

Cancellation No. 92074808
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may bear on conceptual weakness if a term is commonly registered for similar goods.
See Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. v. New Millennium Sports,
S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015); Juice Generation, Inc. v. GS Enters.
LLC, 794 F.3d 1334, 1339-40 (Fed. Cir. 2015).
Respondent argues that “[c]onfusion between LOTE MAESTRO and Petitioner’s
marks is unlikely because consumers have successfully distinguished between
Petitioner’s marks and extensive use of ‘Maestro’ and its legal equivalents that are
used in third-party trademarks throughout the same sales channels.”68 Respondent
also argues that “extensive third-party use renders Petitioner’s mark conceptually
weak under factor 6.”69 In support, Respondent submitted evidence of a number of
third-party uses and/or registrations of marks with MAESTRO, MASTER and
MASTRO for a wide variety of alcohol products, including beer, wine, and different
types of spirits.70 Respondent groups these marks in various ways to suit the
argument being made, at times overstating their significance.71 Nonetheless, we have
68 134 TTABVUE 21.
69 Id. at 48.
70 See 60-62 TTABVUE (Internet evidence); 66 TTABVUE (third-party trademark
registrations and applications); 70 TTABVUE (social media posts relating to the third-party
goods). See also 63 TTABVUE 11-12, 76-98 (Beth Dec. ¶ 47) and Ex. L.
71 134 TTABVUE 48-50. For example, in one place Respondent states “[t]here are 51
U.S.P.T.O. trademark records in the relevant classes of goods (i.e. classes 32 and 33) for
marks using the term ‘maestro,’ at least 29 of which have actual use,” id. at 49, while
stating elsewhere that it “submitted 51 U.S.P.T.O. trademark records using ‘maestro’ or a
legal equivalent in connection with alcoholic beverages and spirits.” Id. at 21 (emphasis
added). The referenced submission contains evidence of 51 marks but only nine of them have
the word MAESTRO. See 66 TTABVUE.
Respondent also fails to differentiate between marks asserted to be in use, potentially
showing commercial weakness, and marks for which only registration evidence was provided,

Cancellation No. 92074808
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culled this evidence in an effort to identify the marks most salient to potential
commercial and/or conceptual weakness of Petitioner’s MAESTRO mark.
As an initial matter, we disagree with Respondent that MASTER and MASTRO
are “legal equivalents” of MAESTRO. For the reasons discussed above, it is not
appropriate to translate Petitioner’s MAESTRO mark under the doctrine of foreign
equivalents because “maestro” is a known word in United States English meaning “a
master in an art, especially a composer, conductor, or music teacher.” Marks using
the words MASTER or MASTRO are less similar to the involved marks than those
marks are to each other and therefore are less probative of commercial weakness than
marks using the word MAESTRO. See, e.g., Specialty Brands, Inc. v. Coffee Bean
Distribs., Inc., 748 F.2d 669, 675 (Fed. Cir. 1984) (“Applicant introduced evidence of
eight third-party registrations for tea which contain the word ‘SPICE’, five of which
are shown to be in use. None of these marks has a ‘SPICE (place)’ format or conveys
a commercial impression similar to that projected by the SPICE ISLANDS mark, and
these third-party registrations are of significantly greater difference from SPICE
VALLEY and SPICE ISLANDS than either of these two marks [are] from each
other.”). In addition, many of the MASTER and MASTRO marks feature other, often
distinctive, words or elements, further distancing them from the marks at issue
here.72 See Sabhnani, 2021 TTAB LEXIS 464, at *32 (third-party registrations that
which themselves are not evidence of use, see, e.g., Palm Bay Imports, 396 F.3d at 1373,
further complicating the analysis.
72 61 TTABVUE 8-59, 79 (examples include BOWMORE MASTERS’ SELECTION,
BUCHANAN’S MASTER WHISKY, CONCERTMASTER, HENNESSY MASTER

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are less similar than the involved marks and contain additional elements are less
probative).
Moving on to those third-party marks with the word MAESTRO, Petitioner argues
that they do not show weakness of its mark because they are either used with
alcoholic beverages other than tequila or the evidence reflects modest, if any, use in
the U.S.73 We have considered all of Respondent’s evidence of third-party marks used
and/or registered for MAESTRO. Based on this review, we do not find that the
evidence shows that consumers encounter so many similar marks for similar goods
that they have become conditioned to distinguish the marks based on minute
differences such that Petitioner’s MAESTRO mark is commercially weak for tequila.
First, there a few MAESTRO-formative marks used with beer, a good that is not
included in either of the involved identifications. Other than both being alcoholic
beverages, Respondent offers no reason why beer and tequila should be deemed
similar for purposes of the sixth DuPont factor, and we find none in the record. Cf. In
re White Rock Distilleries, Inc., No. 77093221, 2009 TTAB LEXIS 601, at *7 (TTAB
2009) (“[t]here is no per se rule that holds that all alcoholic beverages are related” for
purposes of the second DuPont factor). Three of the four beer references appear on
specialty beer websites, and the one seen on totalwine.com (where Petitioner’s
product is also sold) is found under the beer/ale/barley-wine category as opposed to
BLENDER’S, JACK DANIEL’S MASTER DISTILLER). For most of the MASTRO-formative
marks, it is part of a longer term, at least two (MASTROBERARDINO and
MASTROGIANNIS) being surnames. See 62 TTABVUE 10-13, 17-25.
73 139 TTABVUE 32-35.

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the spirits/tequila category.74 See Omaha Steaks, 908 F.3d at 1324 (relevant inquiry
is the “number and nature of similar marks in use on similar goods”).
Most of the MAESTRO-formative marks (about two dozen) are used (and in a few
cases registered) for wine.75 Respondent argues that both wine and tequila are
alcoholic beverages and “[m]any of these alcohol products, such as brandy, rum, and
wine are among Petitioner’s competitors,” citing testimony of Petitioner’s witness Ms.
Beristain.76 As Ms. Beristain explained, entities that sell wine are considered
Petitioner’s competitors “because there is a share of stomach, as we call it, so a
consumer can only drink so much alcohol, but I think that wine and distilled spirits
are very, very clearly distinguished by consumers who consume both.”77 This is
consistent with the record evidence, which either shows wines offered on websites
specializing in wine78 or, like beer, in separate sections on websites offering a broader
selection of alcohol.79 There is evidence that third party goods, including wine, are
advertised on the same social media platforms as Petitioner’s goods, but at most this
74 See 60 TTABVUE 47-57, 225 (ALESONG MAESTRO ale on totalwine.com); 120
TTABVUE 168 (Perez Tr. Ex. 4) (Petitioner’s product on totalwine.com).
75 See 60 TTABVUE 10-30, 59-72, 80-203, 222-23, 228-38 (Internet evidence); 70 TTABVUE;
66 TTABVUE.
76 134 TTABVUE 50 (citing 101 TTABVUE 107 (Beristain Tr.)).
77 101 TTABVUE 107 (Beristain Tr.).
78 See, e.g., 60 TTABVUE 11-15, 65-73, 80-110 (Vivino); 26-27 (Wine Express). Several of the
products appear on the dedicated website or social media posts of a specific winery or store.
See, e.g., 60 TTABVUE 59; 70 TTABVUE 13, 29 (Instagram posts from Maestro Winery in
Jacksonville, FL), 15-19, 23 (Instagram posts from Robert Mondavi brand regarding its
MAESTRO wine); 40 (Instagram post from shop called “Wine Maestro Fine Wines and Craft
Beer”).
79 See, e.g., 101 TTABVUE 145 (screenshot from binnys.com showing Petitioner’s product
under Spirits / Tequila; page shows headings for each of “Wine,” “Spirits” and “Beer”).

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shows that the products are among the many promoted using this ubiquitous means
of advertising. Cf. St. Helena Hosp., 774 F.3d at 754. As with beer, Respondent has
not shown that wine is directed to the same purchasers or relevant public as tequila.
See Omaha Steaks, 908 F.3d at 1325-26 (that goods can be grouped into broad buckets
like food products does not render them similar).
Moreover, there is little evidence of the extent of use of the wine marks with
MAESTRO in their names or of consumer exposure to such marks. For example, one
of Respondent’s exhibits is a printout from an online wine marketplace, vivino.com.80
The printout shows the results of a search for “maestro” and lists a number of wines
with MAESTRO in their names. But only some of the listings have an “Add to cart”
button, some have a “View shops” option (without indicating the stores where the
product is actually offered), and others have no price or availability information at
all.81 Respondent’s evidence also reflects significant variation in the manner of use of
MAESTRO on the wine products, with some wines making prominent use but others
emphasizing different words or graphics, with the word MAESTRO not even visible
on some of the product images shown.82 At most this evidence shows that consumers
seeking wine may encounter some number of wines with the word MAESTRO
somewhere in their names and somewhere on their labels; it does not enable us to
80 60 TTABVUE 11-15.
81 See, e.g., 60 TTABVUE 11-15. See also id. at 112-15 (listing on a European website which
states that product is out of stock); 119-21 (shipping limited to NY state); 231-36 (product
listings on website of specialty wine importer).
82 See, e.g., id. at 117 (showing close up of wine listing with word MAESTRO but word is
barely visible on image of bottle and product is out of stock).

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draw any conclusions about the extent of consumer exposure to these products. And
even if the sheer number of products shows some commercial weakness of MAESTRO
for wines, see Juice Generation, 794 F.3d at 1339 (evidence of a substantial number
of third party uses of similar marks for similar goods “powerful on its face” even
without evidence of extent of use), it does not show commercial weakness of
MAESTRO for tequila.
Next we consider Respondent’s evidence of several third-party uses of MAESTRO-
formative marks for rum, brandy or coffee liqueur.83 Like tequila, these are alcoholic
beverages and there is some evidence that rum and brandy also appear under the
categories of “spirits” or “liquor” on retailer websites.84 But again these uses do not
show that consumers are exposed to a plethora of similar marks for similar goods as
to condition them to distinguish among the marks based on minute differences.
Respondent’s evidence leaves us to guess at how widely available the products are.
For example, Respondent’s evidence of one of the rum products is a single 2019 blog
article discussing a RON ALDEA MAESTRO rum product bottled in 2016; there is
no information about availability or distribution of the product among U.S.
consumers.85 There is some evidence that the HAVANA CLUB SELECCIÓN DE
83 See 60 TTABVUE at 31-34 (use of HAVANA CLUB SELECCIÓN DE MAESTROS for rum);
35-42 (use of BACARDI GRAN RESERVA MAESTRO DE RON for rum); 78 (blog article
reviewing RON ALDEA MAESTRO rum); 44 (use of EL MAESTRO SIERRA with brandy);
70 TTABVUE 37-38 (social media page for MAESTRO CAFÉ coffee liquor product from Italy
containing unspecified type of alcohol).
84 See 60 TTABVUE 41 (screenshot from northendliquors.com with section at side of page
for “liquor” listing rum, tequila, and other products).
85 Id. at 78.

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MAESTROS and BACARDI GRAN RESERVA MAESTRO DE RON rum products are
currently available,86 but each of these products bears other distinctive words or
designs (like HAVANA CLUB and BACARDI).
Respondent submitted evidence of two marks with the word MAESTRO for tequila
or other agave liquor products. The first is PUERTO MAESTRO, which is registered
for distilled agave liquor based on a foreign registration under Trademark Act Section
44(e), 15 U.S.C. § 1126(e), for which use in commerce prior to registration is not
required.87 Petitioner submitted evidence, unrebutted by Respondent, that use of the
mark has been limited to Mexico.88 This mark is therefore not probative of commercial
weakness. Cf. Made in Nature, 2022 TTAB LEXIS 251, at *30-31. Respondent also
submitted evidence of use of the mark MEZCAL DEL MAESTRO with mezcal,89 but
Petitioner submitted evidence, again unrebutted, that this is a brand of Petitioner.90
Cf. id. at *31-32 (“Applicant also made of record Opposer’s own active and cancelled
86 60 TTABVUE 32, 35-38, 205-210, 216 (products seen on websites); 70 TTABVUE 9
(Bacardi Facebook post from 2016); 25 (Havana Club Instagram screenshot from 2021).
87 66 TTABVUE 24-26. Respondent also submitted three applications for MAESTRO-
formative marks for goods broad enough to include tequila. See id. at 21-22, 27-32. These
applications have little to no probative value of weakness because they are evidence only that
the applications were filed. Made in Nature, 2022 TTAB LEXIS 228, at *31. Moreover, the
record shows that two of the applications were abandoned after refusal based on likelihood
of confusion with several of Petitioner’s Marks. See 87 TTABVUE 30-39, 72-82.
88 98 TTABVUE 23, 42-44 (website not permitting change of region for shipping from Mexico).
89 63 TTABVUE 11, 77-78 (Beth Dec. ¶ 47 and Ex. L). We take judicial notice from COLLINS
DICTIONARY that mezcal “is a strong alcoholic drink made from a type of plant called an
agave.” https://www.collinsdictionary.com /us/dictionary/english/mezcal, accessed February
2026. See Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co., No. 91061847, 1982
TTAB LEXIS 146, at *7 (“[T]he Board may take judicial notice of use of a term in
dictionaries.”).
90 94 TTABVUE 22 (Mexico IP Office printout reflecting trademark registration for DEL
MAESTRO in Petitioner’s name).

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registrations and active and abandoned applications, as well as Applicant’s own
active and cancelled registrations and active and abandoned applications. By
definition, these are not ‘third-party registrations.’”).
Taken as a whole, the evidence does not show that consumers have been exposed
to so many uses of MAESTRO in trademarks for tequila or similar goods that they
have become conditioned to distinguish among the marks based on minute
differences. This is consistent with Respondent’s testimony that he was unable to
recall any other brands of tequila with MAESTRO in the name.91 Accordingly, we do
not find that MAESTRO is commercially weak for tequila.
Based on the evidence, we do find, however, that MAESTRO is somewhat
suggestive and not particularly strong conceptually for the involved goods. The
definition of MAESTRO as “a master in an art, especially a composer, conductor, or
music teacher” evokes the idea of a person of great skill in a creative endeavor, and
the evidence shows that this significance has been leveraged for various types of
alcohol including by both of the parties for their tequila.92
There is also evidence that during prosecution of the application underlying the
’848 Registration for MAESTRO, in response to an Office action, Petitioner’s
91 119 TTABVUE 36 (Hermosillo Tr. (“Q. So my question is, are you aware of any tequila
names/brands that have maestro in that name or brand? A. In this time, at this moment, I
don’t remember.”)). See also 46 TTABVUE 14 (Beristain Dec. ¶ 58) (“To my knowledge, except
for LOTE MAESTRO, there are no third parties using MAESTRO as part of a trademark for
tequila or blue agave spirits in the United States.”).
92 See 46 TTABVUE 28 (Beristain Dec. Ex. 4) (advertising for Petitioner’s product touts
“Experience makes the Maestro”); 63 TTABVUE 28 (LOTE MAESTRO advertisement stating
that “[t]he Partida family has dedicated over 100 years to ‘The art of making tequila.’”).

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predecessor in interest argued that the cited mark MASTRO warranted limited
protection because other marks showed that “MASTER, and its variations, are not
particularly strong trademark terms and are not entitled to broad protection” and
evidenced “the commercial attractiveness and popularity of
MASTER/MAESTRO/MASTRO as trademark terms.”93
As Petitioner argues, file wrapper estoppel (i.e., precluding a party from taking
contrary positions to those taken during prosecution) does not apply in Board
proceedings, and a party’s position taken during prosecution does not rise to the level
of an admission against interest. Interstate Brands Corp. v. Celestial Seasonings, Inc.,
576 F.2d 926, 929 (CCPA 1978); Anthony’s Pizza & Pasta Int’l, Inc. v. Anthony’s Pizza
Holding Co., No. 91171509, 2009 TTAB LEXIS 718, at *35, aff’d, 415 Fed. App’x 222
(Fed. Cir. 2010). However, the Federal Circuit “ha[s] recognized that such comments
have significance as facts illuminative of shade and tone in the total picture
confronting the decision maker.” Juice Generation, 794 F.3d at 1340 (cleaned up).
Thus, we consider that Petitioner’s prior statements provide some support for an
argument that its exclusive rights do not extend beyond its “specific mark for specific
goods.”94
93 72 TTABVUE 123-24 (August 23, 2004 Response to Office Action). U.S. Application Serial
No. 78981039, which issued as the ’848 Registration, was the child of U.S. Application Serial
No. 78294122 resulting from a request to divide.
94 Id. at 124.

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F. Actual Confusion or Lack Thereof Despite Coexistence
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 476 F.2d at 1361. Petitioner argues that actual confusion has
occurred, pointing to Westchester Wine Warehouse’s posting of an image of
Respondent’s LOTE MAESTRO product in a listing for Petitioner’s MAESTRO
DOBEL CRISTALINO product.95 There is no evidence, however, that any consumers
were actually confused. This single instance of alleged confusion does not play a
significant role in our overall analysis. See Nat’l Rural Elec. Coop. Ass’n v. Suzlon
Wind Energy Corp., No. 92043377, 2006 TTAB LEXIS 134, at *17-18, aff’d mem., 214
Fed. App’x 987 (Fed. Cir. 2007).
Nor do we consider Petitioner’s survey evidence probative of actual confusion per
se, although we find that it corroborates our conclusion that confusion is likely.
Petitioner commissioned a consumer survey by Dr. Alex Simonson comparing its
MAESTRO DOBEL mark with Respondent’s LOTE MAESTRO mark.96 The survey
interviewed 400 respondents online, geographically dispersed across the country,
male and female, 21 years of age and over.97 The participants were divided into test
and control groups, with the test group shown the names MAESTRO DOBEL and
LOTE MAESTRO and the control group shown the names MAESTRO DOBEL and a
95 125 TTABVUE 33-34 (referencing Beristain Dec. Ex. 14).
96 Id. at 34; 45 TTABVUE 8-9. The survey was a “Squirt”-style survey, which “measures aided
awareness by exposing the respondent to the two marks in issue.” ProMark, 2015 TTAB
LEXIS 67, at *54 (citing Squirtco v. Seven-Up Co., 628 F.2d 1086 (8th Cir. 1980)). See also
Ava Enters., Inc. v. Audio Boss USA, Inc., No. 91125266, 2006 TTAB LEXIS 17.
97 45 TTABVUE 9.

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control mark, LOTE MENTOR, each with the respective identified goods.98 Dr.
Simonson concluded that, after accounting for “noise” by subtracting the level of
confusion reported for the control mark,99 the survey yielded a net level of confusion
as to source or affiliation between MAESTRO DOBEL and LOTE MAESTRO of
approximately 30%.100
Respondent argues that the survey should be disregarded, because methodological
flaws render it irrelevant.101 We have considered all of the parties’ arguments as to
whether the survey should be allowed and the weight, if any, it should be given. We
do not find that the survey should be excluded, but in considering its weight we bear
in mind Respondent’s arguments that the nature of the survey and its particular
questions may have had a tendency to lead respondents toward a desired response,
despite incorporating certain protections to make the survey non-leading and
unbiased. These included asking respondents to complete a “distractor” task after
viewing Petitioner’s mark and before viewing either Respondent’s mark or the control
98 Id. at 9-10, 15-18.
99 Dr. Simonson testified that “[t]he control name should excise the part of the name that is
allegedly infringing (causing confusion) while maintaining similarity in other respects to the
test name. Here, the Spanish word ‘MAESTRO’ in the test name ‘LOTE MAESTRO’ was
substituted with another Spanish word starting with an M with similar meaning
(‘MENTOR’). … This method determines a level of ‘noise,’ meaning a level of stated confusion
in the control cell due to factors such as guessing, or other similarities in the names such as
font, style, look, or other similarities overall such as similar products being offered, regardless
of name similarity.” Id. at 16.
100 Id. at 10-11, 23.
101 134 TTABVUE 68-79 (Respondent’s brief with evidentiary objections). Respondent does
not take issue with Dr. Simonson’s qualifications, and we accept that he qualifies as an expert
in the conduct and assessment of likelihood of confusion surveys.

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mark to reduce short-term memory effects.102 Although there was no caution to avoid
guessing, the questions about common source or affiliation let respondents answer
“not sure/no opinion.”103 Respondents stating that they believed the marks were from
the same or affiliated sources were asked to explain why, with a number of narrative
responses noting the shared word MAESTRO.104 But the survey did not present an
array of marks, which is more consistent with marketplace conditions. See generally
Swann, Likelihood of Confusion Studies and the Straightened Scope of Squirt, 98
TRADEMARK REP. 739, 752 (2008) (noting that in “a subsequently developed
variant [of the Squirt-style survey] to remove the spotlight from the brands at issue,
respondents are shown an array (or sorting board) of marks”); cf. ProMark, 2015
TTAB LEXIS 67, at *55 (discounting survey in part because it asked a closed-ended
question that spotlighted only the two marks at issue).
Despite its potential weaknesses, Petitioner’s survey showing a net confusion level
of approximately 30% corroborates the similar impressions of the marks that we
perceive due to the word MAESTRO. See Carl Karcher Enters. Inc. v. Stars Rests.
Corp., No. 91077850, 1995 TTAB LEXIS 2, at *23 (recognizing “that there is no such
thing as a perfect survey”); see McCarthy § 32:188 (5th ed. December 2025 update)
(“Generally, figures in the range of 25% to 50% have been viewed [by courts] as solid
102 45 TTABVUE 20.
103 Id. at 20-21; 81 TTABVUE 128-30 (Simonson Jan. Tr.).
104 45 TTABVUE 24-25.

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support for a finding of likelihood of confusion.”). However, we would reach the same
outcome in this case even without the survey evidence.
For its part, Respondent argues that Petitioner has failed to show any instances
of actual confusion despite coexistence of the marks,105 indicating that confusion is
unlikely under the eighth DuPont factor, “[t]he length of time during and conditions
under which there has been concurrent use without evidence of actual confusion.”
DuPont, 476 F.2d at 1361. The absence of evidence of actual confusion receives little
weight unless there is also evidence of a significant opportunity for confusion to have
occurred. See, e.g., Keystone, 2024 TTAB LEXIS 290, at *76. Unlike the second, third
and fourth DuPont factors, the eighth DuPont factor “requires us to look at actual
market conditions, to the extent there is evidence of such conditions of record.” In re
Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *19.
Petitioner’s products have been sold since 2008, and we have recounted to some
extent the advertising and sales of its goods in the U.S., which “are sold through
conventional channels of trade for liquor products such as in liquor stores, bars, duty
free shops, restaurants and at sporting events.”106 Respondent began selling its LOTE
MAESTRO branded products in the U.S. more recently, in 2019. Its confidential sales
history shows steady increase since then, but comparing the parties’ sales for 2021
and 2022 (actual or estimated) (the most recent years available and Respondent’s
highest-selling years so far), Respondent’s sales measured by cases sold and dollar
105 134 TTABVUE 51-52.
106 46 TTABVUE 11 (Beristain Dec. ¶ 44).

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sales were considerably lower than those of Petitioner.107 Respondent’s goods have
been sold to wholesalers and retailers in approximately sixteen states,108 have been
promoted at events like the Wine & Spirits Wholesalers of America (WSWA), Latin
Food Fest, San Diego Spirits Festival, and Monterey Bay Tequila & Cuisine, and have
won several awards at the San Diego Spirits Festival International Spirits
Competition.109 LOTE MAESTRO tequila is promoted via social media on Facebook
and Instagram, at local retailers such as Total Wine and Costco, and at tastings,
festivals, trade shows, and events where it is an exhibitor.110 Each of Respondent’s
witnesses testified that he was unaware of any actual consumer confusion as to the
source of the parties’ respective products.111
There is evidence that the parties’ goods have been sold at some of the same
retailers, including stores like Costco, Total Wine and Old Town Tequila.112 But the
evidence shows that Respondent’s brand is much smaller than Petitioner’s, with Mr.
Beth testifying that “Lote Maestro is in about 100 accounts in the United States” and
Petitioner’s products are in “thousands and thousands.”113
107 See 64 TTABVUE 6-7 (Beth Dec. (confidential) ¶¶ 22-25); 44 TTABVUE 10-11, 26-28
(Beristain Dec. (confidential) ¶¶ 42-43 and Ex. 15).
108 64 TTABVUE 6 (Beth Dec. (confidential) ¶¶ 20, 23).
109 65 TTABVUE 7 (Perez Dec. ¶¶ 32, 34).
110 Id. at 8-12 (Perez Dec. ¶¶ 35-45).
111 Id. at 13-14 (Perez Dec. ¶¶ 51-57); 63 TTABVUE 20 (Beth Dec. ¶¶ 71-73); 68 TTABVUE
21 (Hermosillo Dec. ¶¶ 35-36).
112 See, e.g., 63 TTABVUE 20 (Beth Dec. ¶ 70).
113 123 TTABVUE 101 (Beth Tr.).

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We find that there has been some opportunity for confusion, but the record lacks
evidence showing appreciable and continuous use of Respondent’s marks in the same
markets as Petitioner over a significant period of time. On this record, the absence of
reported instances of consumer confusion is not particularly meaningful to our
assessment of the likelihood of confusion between the respective marks. See Citigroup
Inc. v. Cap. City Bank Grp., Inc., No. 91177415, 2010 TTAB LEXIS 40, at *50
(“absence of any reported instances of confusion is meaningful only if the record
indicates appreciable and continuous use by applicant of its mark for a significant
period of time in the same markets as those served by opposer under its marks”)
(citation omitted), aff’d, 637 F.3d 1344 (Fed. Cir. 2011); see also Kraft, Inc. v. Country
Club Food Indus., No. 92013549, 1986 TTAB LEXIS 84, at *11 (absence of evidence
of actual confusion was not proof that confusion is not likely “[i]n view of the limited
scope of registrant’s distribution and the relatively small promotional effort put forth
on behalf of registrant’s goods”). Moreover, it is well-settled that actual confusion is
“hard to prove” and is not necessary to establish a likelihood of confusion. See, e.g.,
Sunkist Growers, Inc. v. Intrastate Distribs., Inc., 144 F.4th 1376, 1381 (Fed. Cir.
2025) (“[T]he failure to prove instances of actual confusion is not dispositive against
a trademark plaintiff, because actual confusion is hard to prove.”) (cleaned up).
G. Alleged Bad Faith Adoption by Respondent
Under the thirteenth DuPont factor, we may consider “[a]ny other established
fact probative of the effect of use,” including a party’s bad faith in adopting a mark.
QuikTrip West, Inc. v. Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (citing

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DuPont, 476 F.2d at 1361). Petitioner argues that Respondent has promoted its
products in a way that trades off of the goodwill of Petitioner’s marks by emphasizing
the word MAESTRO and using the words DOBLE REPOSADO in addition to LOTE
MAESTRO to create an association with Petitioner’s MAESTRO DOBEL mark.114
Respondent’s use includes a social media post with the hashtags #LoteMaestro and
#doblereposado in close proximity.115 Respondent admitted that he was aware of the
MAESTRO DOBEL mark when selecting the name LOTE MAESTRO,116 but argues
that he did not intend to copy Petitioner’s marks or confuse consumers.117 Instead,
Respondent contends that he used “doble reposado” with the Spanish word for
“double” to describe a variety of his tequila.118
“[A]n inference of ‘bad faith’ requires something more than mere knowledge of a
prior similar mark.” Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560,
1565 (Fed. Cir. 1987). “It requires an intent to confuse.” QuikTrip, 984 F.3d at 1036
(citing Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 117 (2d Cir. 2009)
114 125 TTABVUE 29-33. Contrary to Respondent’s contentions, we do not consider
Petitioner’s arguments based on Respondent’s use of “doble reposado” as an unpleaded claim
of “conjoint trademark use by GPH relevant to the likelihood of confusion.” 134 TTABVUE
56-57, citing Bell’s Brewery, Inc. v. Innovation Brewing, No. 91215896, 2017 TTAB LEXIS
452, at *24 (“a likelihood of confusion claim based on the claimant’s use of two marks
conjointly must be pleaded clearly enough to provide fair notice of the claim to the
defendant”). Petitioner does not rely on two of its marks in “conjoined” fashion to support a
claim of likelihood of confusion with a registered mark of Respondent containing the
conjoined elements. Instead, Petitioner argues that Respondent’s use of DOBLE reflects bad
faith because it is similar to DOBEL.
115 125 TTABVUE 31 (citing 59 TTABVUE 70, 74).
116 119 TTABVUE 39 (Hermosillo Tr.).
117 134 TTABVUE 55-56.
118 Id. at 55-57.

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(“[T]he only relevant intent is intent to confuse. There is a considerable difference
between an intent to copy and an intent to deceive.”)). We have considered all of
Petitioner’s arguments, but do not find the evidence of record sufficient to support an
inference of bad faith. See, e.g., Look Cycle, 2024 TTAB LEXIS 289, at *24.
H. Weighing the Factors and Conclusion on Likelihood of Confusion
The final step in analyzing likelihood of confusion is to weigh the DuPont factors
for which there has been evidence and argument and “explain the results of that
weighing” and “the weight [we] assigned to the relevant factors.” Heil Co., 2024 TTAB
LEXIS 494, at *95 (citing Charger Ventures, 64 F.4th at 1384). Petitioner’s tequila
and Respondent’s “alcoholic beverages, except beer” are legally identical in part, and
the channels of trade and classes of consumers are presumed to be the same to this
extent, with these DuPont factors weighing heavily in favor of likelihood of confusion.
The identified goods are unrestricted as to quality or price, and we must consider the
perspective of the least sophisticated potential purchaser, not just purchasers of
Respondent’s higher priced offerings, with the fourth DuPont factor neutral in our
analysis. Comparing Petitioner’s MAESTRO mark and Respondent’s LOTE
MAESTRO standard character mark in their entireties, we find that they are quite

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similar. Although MAESTRO and are less similar when compared
in their entireties, we still find that they are similar because both feature the
dominant verbal element MAESTRO, and the degree of similarity needed for
confusion to be likely is lower where, as here, the goods are legally identical in part.
The first DuPont factor weighs in favor of likelihood of confusion with respect to both
of Respondent’s marks. Considering all of the evidence and arguments presented
under the fifth and sixth DuPont factors, Petitioner’s MAESTRO mark has at most
modest commercial strength and is somewhat conceptually weak, with these factors,
on balance, not swaying our likelihood of confusion analysis. No factor weighs against
a likelihood of confusion.
Balancing the factors, we conclude that confusion is likely when Petitioner’s and
Respondent’s marks are used with their respective identified goods.
Decision:
Respondent’s counterclaim seeking to cancel Registration No. 3624848 for
MAESTRO based on abandonment is denied. Petitioner’s petition to cancel
Registration No. 5846859 for LOTE MAESTRO and Registration No. 5869770 for

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based on priority and likelihood of confusion under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), is granted.